Research › Search › Judgment

Tripura High Court · body

2013 DIGILAW 9 (TRI)

Ashu Das @ Nama v. State of Tripura

2013-07-02

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. In this criminal appeal, the appellant named above, challenged the judgment and order of conviction and sentence dated 30.05.2006 passed by learned Additional Sessions Judge, Belonia, South Tripura in Case No. S.T. 10 (ST/B) 2006 where under learned Additional Sessions Judge found the accused appellant guilty of committing offence punishable under Section 376(2)(g) of IPC and Section 457 of IPC and sentenced him to suffer R.I. for 11 years and to pay a fine of Rs. 5,000/-, in default of payment to suffer S.I. for 6 months under Section 376(2)(g) of IPC and again sentenced him to suffer R.I. for 2 years and to pay a fine of Rs. 2,000/- in default of payment to suffer S.I. for 2 months under Section 457 of IPC. Heard learned counsel, Mr. R. Datta for the appellant and learned Additional PP., Mr. P. Bhattacharjee for the State respondent. 2. Prosecution case, briefly stated, is that on 7.05.2002 at about 2300 hours, 'Anima' (actual name kept concealed), the informant (P.W. 7) was sleeping in her hut with her two minor brothers. Her parents, aunt and grandmother were away from the house at Nripendranagar to see an ailing relative. At that point of time, the accused-appellant Ashu Das, who was a driver by profession and another Azad Hossain Chowdhury, both co-villager of 'Anima' broken open the door of the hut, entered in the room and forcibly committed rape on her one after another. Her two minor brothers raised alarm and at the time of occurrence, they went out and reported the neighbourers. The neighbouring people rushed to the hut and found the accused persons in the hut of 'Anima'. Accused Azad Hossain fled away, but accused Ashu Das was caught red handed by the witnesses, but thereafter, he somehow fled away. 'Anima' reported the incident to the neighbourers that she was raped by the accused persons. She was waiting for return of her parents and when her parents returned, on 29.05.2002, she lodged an F.I.R. before O.C., P.R. Bari P.S. and accordingly, P.R. Bari P.S. Case No. 21 of 2002 under Section 457 and 376(2)(g) of IPC was registered and an investigation was taken up. Accused Ashu Das was arrested by the police in course of investigation and his confessional statement was recorded by learned SDJM, Belonia observing formalities on 03.06.2002. Accused Ashu Das was arrested by the police in course of investigation and his confessional statement was recorded by learned SDJM, Belonia observing formalities on 03.06.2002. In course of investigation, 'Anima' was medically examined at Belonia hospital by medical officer Dr. Sajal Kanti Saha (P.W. 11) and a report was collected by I.O. Ultimately, on conclusion of investigation, charge sheet was submitted against both the F.I.R. named accused persons showing accused Md. Azad Hossain Chowdhury as absconder. On commitment of the case to the Court of Additional Sessions Judge, Belonia, learned Additional Sessions Judge on 01.04.2006 framed charge against the accused under Section 376(2)(g) of IPC to which the accused pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 11 witnesses. The F.I.R lodged by P.W. 7, the victim prosecutrix Anima has been proved and marked as Exbt. P1 and also proved the medical report of the victim prosecutrix submitted by P.W. 11, which has been marked as Exbt. 3. The hand sketch map of the place of occurrence with index were also prepared and referred in the deposition of P.W. 9, but not formally exhibited. 3. After closer of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and in his turn, accused declined to adduce any defence evidence. 4. Defence case is nothing but a bare denial of the prosecution case. 5. Learned Additional Sessions Judge at the conclusion of trial, found the accused-appellant guilty of committing offence punishable under Section 376(2)(g) as well as under Section 457 of IPC and sentenced him as aforesaid, which is challenged in the present appeal. 6. It is submitted by Mr. Datta, learned counsel for the appellant, that F.I.R of the case was lodged after two days of the occurrence and no plausible explanation given for the delayed lodging of F.I.R. So, the prosecution case cannot be believed. Not isolated reading, but a close scrutiny of the prosecution evidence as a whole, submits Mr. Datta, makes it abundantly clear that a got up story presented by the prosecutrix which cannot be believed. The trial court committed a serious wrong in holding the accused guilty of rape. At the very outset, learned counsel, Mr. Not isolated reading, but a close scrutiny of the prosecution evidence as a whole, submits Mr. Datta, makes it abundantly clear that a got up story presented by the prosecutrix which cannot be believed. The trial court committed a serious wrong in holding the accused guilty of rape. At the very outset, learned counsel, Mr. Datta has submitted that only charge framed against the accused by the learned Additional Sessions Judge was for commission of offence punishable under Section 376(2)(g) of IPC to which the accused pleaded not guilty. No charge was framed under Section 457 of IPC. Though there was no charge framed under Section 457 of IPC, learned Additional Sessions Judge found the accused guilty and sentenced him under Section 457 of IPC, which was totally illegal and not tenable in law. He has also contended that even the language of the charge does not contain any incriminating fact of lurking house trespass or house breaking by night and so the punishment under Section 457 IPC was whimsically recorded by learned Additional Sessions Judge and even he did not apply his mind in the materials on record and thereby, at the inception of his judgment, learned Additional Sessions Judge mentioned that the charges under Section 457 and 376(2)(g) of IPC were framed which shows that the learned Additional Sessions Judge capriciously passed the judgment without application of mind at all. 7. Countering the submission of learned counsel, Mr. Datta, learned Additional P.P., Mr. Bhattacharjee has submitted that delay has been explained in the F.I.R. itself. There was no cross-examination on the point of delay. The medical evidence clearly supported the case of rape and there is nothing to disbelieve the prosecution case of gang rape. The accused appellant in his confessional statement clearly admitted the fact that he along with the absconder accused went to the house of the victim and the absconder accused broken open the door and committed rape on the victim and he was standing on the door. The witnesses stated that they found the accused-appellant hiding himself beneath the cot which shows that the accused entered in the room and committed rape on the victim. Therefore, it is overwhelmingly established that both the accused are guilty of committing offence of gang rape and therefore, learned Additional Sessions Judge rightly punished the accused-appellant which does not deserve interference. 8. Therefore, it is overwhelmingly established that both the accused are guilty of committing offence of gang rape and therefore, learned Additional Sessions Judge rightly punished the accused-appellant which does not deserve interference. 8. However, learned Additional P.P., has fairly submitted that there was no charge framed under Section 457 of IPC though charge sheet was filed under Section 376(2)(g) and 457 of IPC. Cognizance was accordingly taken, but no charge was framed under Section457 of IPC at the time of trial. Therefore, he frankly submitted that the punishment under Section 457 of IPC was altogether not according to law since there was no charge framed under that Section. 9. Section 228 of Cr.P.C., prescribes the law in respect of framing of charge in a Session trial which reads thus:-- 228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. In the present case, admittedly, no charge was framed under Section 457 of IPC. In Para 3 of the judgment, learned Additional Sessions Judge mentioned that cognizance was taken under Section 457, 376(2)(g) of IPC and further mentioned that charge has been framed against the accused under Section 376(2)(g) and 457 of IPC, and, he has quoted the charge framed by him, which only shows that charge under Section 376(2)(g) was framed and no charge was framed under Section 457 of IPC. It is, therefore, evident that learned Additional Sessions Judge without application of mind to the case record, wrongly recorded about the charge under Section457 of IPC. He even did not apply his mind while writing about the charges in the judgment. 10. While there was no charge framed under Section 457 of IPC, learned Additional Sessions Judge was not supposed to inflict any punishment on the accused under that Section. 11. The provisions relating to "charges" are intended to provide that "the charge" shall give the accused full notice of the offence charged against him. A charge may be framed at any stage of the trial, in case, it is found inevitable. Only procedure to be followed, in the case of alteration of charge or framing of a new charge, the Court would give opportunity of reexamination and cross-examining of the witnesses if so require. Where no charge is framed at all, during the course of trial, it would be altogether a wrong decision on the part of a court of law in inflicting punishment on an accused. 12. The purpose of charge is to tell an accused person as preciously and concisely as possible of the matter with which he is charged and must convey to him with sufficient clearness and certainty what the prosecution intends to prove against him and of which he will have to clear himself. While no idea and/or information about the offence punishable under Section 457 IPC was given to the accused during the course of trial, it was altogether beyond the jurisdiction of the court to inflict punishment on the accused for the offence, even if, it was made out in the evidence recorded during trial. It cannot be expected from a senior judicial officer of the rank of Additional Sessions Judge. 13. Learned Additional P.P. submitted that without framing of charge, it was absolutely wrong in holding the accused guilty of committing the offence punishable under Section 457 of IPC and therefore, he has nothing to submit to uphold the order of conviction and sentence under Section 457of IPC. The judgment and order of conviction and sentence under Section 457 IPC, since no charge was framed, is found to be illegal, violative of the procedure prescribed by law and hence liable to be set aside and accordingly I do so. The judgment and order of conviction and sentence under Section 457 IPC, since no charge was framed, is found to be illegal, violative of the procedure prescribed by law and hence liable to be set aside and accordingly I do so. It is expected that learned Additional Sessions Judge should be careful in future. 14. It is submitted by learned counsel, Mr. Datta that the incident occurred on 27.05.2002 at about 11 p.m., but the F.I.R was lodged on 29.05.2002 at 1515 hours and the delay has not been explained satisfactorily. Therefore, an adverse inference should be drawn against the prosecution. He has also submitted that the allegation made by the victim prosecutrix is not supported by the medical evidence and therefore, implicit reliance on her evidence cannot be placed 15. The last argument advanced by learned counsel, Mr. Datta is that the accused Ashu Das is in custody from the date of his arrest and in the mean time, he has already suffered about 7 years and 1 month in jail and if, this Court found the accused guilty of the offence charged against him, he may be punished for the period already suffered and be set at liberty. He is a married man and his family also starving because of his detention in custody. 16. A rape is a most hated crime. It is a crime against basic human rights of a woman i.e. her right to life. It degrades a woman's personality and it causes serious psychological as well as physical harm in the process. Sexual violence apart from being a dehumanize act is an unlawful intrusion on the right of privacy and sanctity of a female. A victim of rape is not an accomplish. She is like an injured witness of a case. The evidence of a victim of rape is to be considered at per as an injured witness and if her sole evidence inspire confidence is sufficient to record an order of conviction. In the case of State of Punjab Vs. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 , the Supreme Court has observed:-- ...rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely ' a physical assault it is often destructive of the whole personality of the victim. Gurmit Singh & Ors. reported in (1996) 2 SCC 384 , the Supreme Court has observed:-- ...rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely ' a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature. 17. Let us first have a glimpse to the evidence on record. F.I.R. is proved as Exbt. 1. The prosecutrix is an unmarried illiterate young lady aged about 20 years at the time of her recording deposition and is a daily labour by profession. He put LTI in F.I.R as well as in her deposition. It is evident that the prosecutrix hails from a very downtrodden family and resides in a very interior village of P.R. Bari P.S. In the F.I.R, she alleged that the accused persons both entered in her hut breaking the door at about 11 p.m. of the night on 27.05.2002. They gagged her mouth with a cloth and raped her one after another. Her two minor brothers raised alarm and went to the adjacent house in the village to report about the incident. The village people came and she narrated the incident. The village people also found the accused persons and tried to catch them, but they fled away. She with her minor brothers were only at her house since her parents were away at Nripendranagar to see her ailing cousin. Delay in lodging F.I.R was caused because of her father's absence in the house. She also stated that the F.I.R written by one Kanti Biswas (P.W. 10), as per her statement and she put her LTI. The scribe of the F.I.R i.e. Kanti Biswas has been examined as P.W. 10 and he proved the F.I.R and the LTI of the prosecutrix which is marked as Exbt. 1. 18. She also stated that the F.I.R written by one Kanti Biswas (P.W. 10), as per her statement and she put her LTI. The scribe of the F.I.R i.e. Kanti Biswas has been examined as P.W. 10 and he proved the F.I.R and the LTI of the prosecutrix which is marked as Exbt. 1. 18. In her deposition (it was recorded on 08.05.2006), she stated that about 4 years ago on a day at about 11 a.m., the accused persons Azad Miah and Ashu driver (accused Ashu Das) entered in her room breaking the door. They also brought down the Hariken light and caught her. Her two brothers raised cry, but they were threatened on point of dagger and so, they went out to call the neighbourers. In the mean time, one accused caught hold of her hand and pressed her mouth and the other accused raped her. In turn, the other accused also raped her in the same manner. Both the accused Ashu and Azad were her neighbours and she identified them in the light of the lamp. On call by her brothers, her neighbour Pradip (P.W. 1) and his wife, (P.W. 2) came to her house and they caught the accused Ashu red handed, but Azad fled away. Subsequently, Ashu also fled away when other neighbourers were coming to her house. She identified accused Ashu in the dock. In cross-examination, she stated that she suffered injury in her hands and breast. When the accused persons were breaking the door, they cried out but there were no adjacent neighbour to hear their cry. She denied the suggestion that there was no lamp in their house and it was completely dark and she could not identify the accused persons. She also denied the suggestions that Ashu Das did not commit rape on her. 19. The above evidence of the victim prosecutrix remains completely un-rebutted and not shaken in any manner. She has been substantially corroborated by the medical evidence of P.W. 11. It is stated by P.W. 11 that he examined the prosecutrix on 29.05.2002 i.e. on the date of lodging the F.I.R. and he found injuries on her breast. There was no external injury in her vaginal organ. After examination, he opined that there was penetration of penis like object but there was no injury in the vagina of the victim. There was possibility of sexual assault on the victim. There was no external injury in her vaginal organ. After examination, he opined that there was penetration of penis like object but there was no injury in the vagina of the victim. There was possibility of sexual assault on the victim. He opined that possibility of sexual assault cannot be ruled out. Medical report has been proved as Exbt. p.3. In cross, he stated that he did not mention about hymen in his report. No spermatozoa was found in the examination of vaginal swab. In the upper portion of the body of the victim, he detected teeth bite and he found no injury in the vagina. He denied the suggestion that his opinion is incorrect. Exbt. p.3, the medical examination report submitted by P.W. 11 has been carefully examined. It shows that P.W. 11 examined the prosecutrix on 29.05.2002 at 9.15 p.m. at Belonia hospital. He clearly mentioned in the report that there were three numbers of teeth bite. Those were of the size 2 cm x 1 cm and about two days duration. On right cheek, doctor found three teeth marks measuring about 2 cm x 1 cm and those were also of two days duration. There was no external injury found in the vaginal area. Hymen was old ruptured and vaginal canal was normal and elongated. Vaginal orifice admits two fingers without discomfort. On examination of the vaginal swab, no spermatozoa was found. He recorded his opinion in the report that all the findings were consistent with the penetration of a penis like object and that there was possibility of recent sexual assault. The doctor's opinion has not been shaken in the cross-examination. It is therefore, corroborating the case of the prosecutrix that she was subjected to sexual assault as alleged on the night of occurrence. 20. P.W. 8, the minor brother of the victim, in his deposition, stated about the occurrence that on the night of occurrence, he along with his younger brother Ratan and elder sister were in the house. The accused persons breaking the door trespassed in the hut and in the light of the lamp they could identify them as Ashu driver and Azad Mian. They broken down the lamp and caught his elder sister. He and his brother went out to call the neighbourers. Neighbourers came and caught Ashu driver. He identified the accused-appellant in the dock. The accused persons breaking the door trespassed in the hut and in the light of the lamp they could identify them as Ashu driver and Azad Mian. They broken down the lamp and caught his elder sister. He and his brother went out to call the neighbourers. Neighbourers came and caught Ashu driver. He identified the accused-appellant in the dock. There is nothing material in his cross-examination. Learned Additional Sessions Judge examined the child witness after being satisfied that the witness was capable of giving rational answer put to him. The evidence of P.W. 8 therefore, corroborates the prosecutrix. 21. P.Ws 1, 2, 3, 4 are all the neighbouring people and out of them, P.Ws 1 and 2 rushed to the house of the victim immediately after hearing about the occurrence from the minor brothers of the victim. They categorically stated that the victim prosecutrix told them that the accused persons forcefully entered in her hut breaking the door and committed rape on her one after another. They also stated that the parents, aunt and grandmother of the prosecutrix were away at Nripendranagar and on that night, the prosecutrix with her two minor brothers were only in the hut. It is also clearly brought on record in the evidence of those witnesses that the accused Ashu was a driver by profession and he was known as Ashu driver. P.Ws 1 and 2 categorically stated that when they reached the house of the prosecutrix, one accused fled away on seeing them. The other accused (Ashu Das) was hiding himself under the cot of the prosecutrix and he was caught by P.W. 2, but when other witnesses were coming, the accused Ashu fled away from the spot. The evidence of neighbouring witnesses remain unshaken and there is nothing material in the cross-examination. Prosecution case is therefore, established with overwhelming evidence that on the alleged date and time of occurrence, both the accused persons entered in the hut of the prosecutrix breaking the door and committed rape on her. 22. Regarding delay in lodging F.I.R. as I find, the prosecutrix in the F.I.R. itself has given her reasons that she was waiting for return of her father from Nripendranagar. 22. Regarding delay in lodging F.I.R. as I find, the prosecutrix in the F.I.R. itself has given her reasons that she was waiting for return of her father from Nripendranagar. The prosecutrix is a young woman and it was natural for her, in the given facts and circumstances of the case to wait for return of her father to home, who was supposed to be reported first about the future action to be taken against the accused for the alleged offence committed on her. What was stated by her in the F.I.R, which has been proved as Exbt. 1 by P.W. 10, no cross-examination was made on behalf of the accused to controvert it. While an explanation has already been brought on record regarding the delay in lodging the F.I.R and that has not been controverted in any manner and there is nothing to show that there was any embellishment or after thought in the prosecution case, I find nothing to attach any importance in the argument advanced by learned counsel, Mr. Datta on the ground of delay. 23. In the case of State of Punjab vs. Gurmit Singh (supra), the Supreme Court has observed that the courts cannot overlook the fact that in sexual offences delay in the lodging of the F.I.R can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. Here in this case, the prosecutrix is an illiterate young woman and a day labour and they hails from very poor strata of the social life. We cannot expect that they will be reacting like that of urban people after an incident. An illiterate young woman would be naturally waiting for her parents to come to decide whether a case will be instituted or not. In the given facts and circumstances of the case, I find nothing to draw an adverse inference for the delay in lodging the F.I.R. 24. It has been submitted by learned counsel, Mr. An illiterate young woman would be naturally waiting for her parents to come to decide whether a case will be instituted or not. In the given facts and circumstances of the case, I find nothing to draw an adverse inference for the delay in lodging the F.I.R. 24. It has been submitted by learned counsel, Mr. Datta that the accused cannot be held guilty of gang rape since P.W. 11, the doctor has stated that one accused committed rape on the victim and further the accused made an exculpatory confessional statement that he along with the other accused went to the house of the victim and that he was waiting in front of the door and his accomplish the other accused Azad Miah entered in the room and committed rape on her. So, it might happen that the accused did not enter in the room and did not commit rape. 25. Learned Additional P.P. has submitted that the prosecutrix has made categorical statement that she was raped by both the accused. She narrated the fact to the other independent witnesses immediately after the occurrence on their arrival. Her statement is found to be worthy of credit and so, there is no reason to put a doubt in her statement based on a line of statement recorded by the doctor in his report. Section 376(2)(g) prescribes punishment for gang rape. Explanation 1 to the said sub-Section prescribes:-- Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection. 26. The accused with his accomplish Md. Azad Hossain alias Miah at midnight went to the house of the victim, their co-villager. It is to be presumed that it was known to them that the victim prosecutrix was alone in her house with her two infant brothers and that her parents and other elderly persons away from her house. They broken open the door and according to the prosecutrix, both of them entered and committed rape on her. Even if we take into consideration the exculpatory confessional statement of the accused, he cannot escape punishment of gang rape in view of explanation 1 to Section 376 2(g) of IPC. The culpable intention of the accused has been overwhelmingly established in the evidence on record. Even if we take into consideration the exculpatory confessional statement of the accused, he cannot escape punishment of gang rape in view of explanation 1 to Section 376 2(g) of IPC. The culpable intention of the accused has been overwhelmingly established in the evidence on record. P.W. 11 in Exbt. 3, the medical report noted the history with the words "Brief History--History of sexually assaulted by one person on 27.05.2002 at approx. 11.10 p.m." This is a statement recorded by the doctor having information from either the prosecutrix or somebody else. In his deposition, P.W. 11 stated that the victim had a history of assault and rape on her on 27.05.2002. In his deposition, doctor did not state what he noted in his report. Such brief history what is recorded by the doctor in the report is an information he received from the information giver and it was not his own observation on examination of the prosecutrix. So, what is stated in the report based on information received from others cannot be regarded as an evidence unless that statement is made by the person concerned based on whose statement it was recorded. During cross-examination of the prosecutrix or the Medical Officer (P.W. 11), no question was put to verify whether the victim made any such statement to the medical officer that one person raped her. Even the medical officer was not cross-examined as to who told him the history that one person committed rape. Under such circumstances, no importance can be attached on such statement recorded by the doctor in the report in the form of brief history of the case. 27. On going through the confessional statement of the accused, I find that the learned SDJM on 03.06.2002 recorded the confessional statement of the accused-appellant and in that statement he stated--on 27.05.2002 A.D., Monday at about half past one at night, he along with Azad Miah went to the house of prosecutrix (victim) at Dimatali and Azad Miah entered into the hut of the victim by breaking the wooden door of the hut. He (Azad Miah) forcibly raped the prosecutrix. He (appellant) was standing at the door of the hut. He (Azad Miah) forcibly raped the prosecutrix. He (appellant) was standing at the door of the hut. At the alarm raised by prosecutrix, the villagers came running and apprehended him at the door of the house of the prosecutrix and Azad Miah inside the hut of the prosecutrix.--This confessional statement of the accused since referred by learned defence counsel is looked into and I find that the statement rather supporting the prosecution case and can in no way help the accused-appellant. P.Ws 1 and 2 categorically stated that they found the accused under the cot inside the hut of the prosecutrix and they caught him, but thereafter, the accused fled away. That evidence has not been controverted or shaken in any manner. The accused tried to get rid of the charge, taking a false plea that he was waiting at the door of the hut, but the prosecution evidence clearly established that both the accused committed rape on the prosecutrix. 28. The confessional statement as I find, was recorded observing the formalities. Learned Additional Sessions Judge referred the confessional statement in his judgment. On perusal of the memo of examination of the accused under Section 313 Cr.P.C., I find that learned Additional Sessions Judge in course of examination of accused did not refer it to the accused and therefore, he was not supposed to consider it as an evidence against the accused. Section 313 Cr.P.C., clearly stipulates that for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against to the Court shall examine him putting questions generally on the case. While a confessional statement was on record, the prosecution was supposed to put it in evidence by examining the learned magistrate and affording opportunity to the accused to say about the confessional statement recorded during the stage of investigation. Learned Additional Sessions Judge was also supposed to put it to the accused in course of his examination under Section 313 Cr.P.C. to get an explanation from the accused about the confessional statement, which is a very important material collected during investigation of the case. Learned Additional Sessions Judge was also supposed to put it to the accused in course of his examination under Section 313 Cr.P.C. to get an explanation from the accused about the confessional statement, which is a very important material collected during investigation of the case. It was a serious infirmity on the part of the prosecution as well as the trial court that the confessional statement was not brought on record during trial and that it was not put to the accused in the course of his examination under Section313 Cr.P.C. It is expected that the trial court should take care of such eventuality in future. Any material appearing in the evidence against an accused must be put to the accused in the course of his examination under Section 313 Cr.P.C. to enable him to explain about any such material 29. Next argument advanced by learned counsel, Mr. Datta is that the parents and grandmother of the victim were not examined. The victim prosecutrix and her brother clearly stated that their parents, grandmother and aunt were away from the house on the relevant night of occurrence. All of them have not been examined by the prosecution. P.W. 6, the aunt Smt Parbati Munda has been examined. She stated that they were away from their house cm that night I find nothing to draw an adverse inference for non-examination of the father and grandmother. Since the father and grandmother were not at home, they cannot be regarded as a material witness of the prosecution. For their non-examination, no adverse inference can be drawn against the prosecution case which is otherwise established on the evidence of other witnesses on record. 30. In the case of State of A.P. Vs. Gangula Satya Murthy reported in (1997) 1 SCC 272 and in the case of State of H.P. Vs. Lekh Raj & Anr. reported in (2000) 1 SCC 247 , the Supreme Court has observed that the courts while dealing with the rape cases should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses. Lekh Raj & Anr. reported in (2000) 1 SCC 247 , the Supreme Court has observed that the courts while dealing with the rape cases should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses. In the case of Gurmit Singh (supra), the Supreme Court has observed that the testimony of the prosecutrix must be appreciated in the back ground of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation. 31. Learned counsel, Mr. Datta has referred the case of Bibhishan Vs. State of Maharashtra reported in 2008 CRI. L. J. 721. The fact of that case and the fact of the present case are found to be clearly distinguishable. In that reported case, the statement of the victim was not supported by the medical evidence at all. Rather she was found to be a woman, who was habituated in frequent sexual intercourse. Her evidence was not found credible and therefore, the appeal was allowed and the accused was acquitted. In the present case, the incriminating facts stand on different footings. The prosecutrix is found to be worthy and credible and her allegation supported by medical evidence and also supported by the other neighbouring witnesses. In the circumstances, I find no force in the argument advanced by learned counsel, Mr. Datta. 32. It is emphatically submitted by learned counsel, Mr. Datta that the accused-appellant is in jail custody for about 7 years 1 month. He has already suffered a lot for the offence alleged to have committed by him and in the circumstances of the case, if he is found guilty, he may be imprisoned for the period already suffered by him and may be set free. 33. Atrocities on woman specially the case of rape is on the increase. When an allegation of rape is found established, the Court should not hesitate to inflict adequate punishment on the offender of such heinous crime. Any leniency on such offenders will amount to a travesty of justice. Society will lose its confidence on the efficacy of law. It is imperative that whenever such dastardly crimes are detected and the offence is brought home to the accused, the Court must deal with the offender most ruthlessly and impose deterrent punishment. Any leniency on such offenders will amount to a travesty of justice. Society will lose its confidence on the efficacy of law. It is imperative that whenever such dastardly crimes are detected and the offence is brought home to the accused, the Court must deal with the offender most ruthlessly and impose deterrent punishment. The facts of this case is that the accused with his accomplish stormed the house of the victim at night when she was sleeping with her two minor brothers. There is no iota of evidence on record that the prosecutrix was a woman of easy virtue or that she advanced any sorts of indulgence to the accused persons at any point of time who are her co-villagers. The accused stated nothing in his examination under Section 313 Cr.P.C. seeking any leniency in respect of punishment for any reason. In cross-examination also, nothing was suggested to show that leniency in respect of punishment is necessary to the accused. Under such circumstances, I find nothing to interfere even in respect of punishment inflicted on the accused for the offence. 34. In view of the discussions made above, the appeal is found devoid of merit and stands dismissed. 35. Before parting with the case record, I am constrained to observe that not only the prosecution conducted the case callously, though it is a serious case of gang rape, but also the learned trial judge very superficially and mechanically conducted the trial. A trial court is expected to be active and alive while recording the deposition of witnesses. He should not be a silent spectator. It is the duty of the trial judge to see and to find out that all material aspects of evidence of a case is brought before the Court A trial judge cannot be a mere spectator, but should control a criminal trial by actively participating therein to find out the truth. In the present case, as already observed herein before, the trial judge punished the accused even without framing charge under Section457 of IPC. His observation in the judgment about the charge is found to be self-contradictory. So far I find, the recorded deposition of witnesses and the judgment are concerned, there are numerous typographical errors and silly mistakes in sentence construction which ought to be corrected by the learned Additional Sessions Judge, but such corrections were not made. His observation in the judgment about the charge is found to be self-contradictory. So far I find, the recorded deposition of witnesses and the judgment are concerned, there are numerous typographical errors and silly mistakes in sentence construction which ought to be corrected by the learned Additional Sessions Judge, but such corrections were not made. It is necessary that before the deposition is signed by the learned Judge, he should make necessary correction and in the same way after the judgment is typed down, before signing it, the trial judge should make necessary corrections to keep the record clean and correct I hope this will be strictly followed by the trial courts in future. Send back the L.C. records along with a copy of this judgment.