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2017 DIGILAW 154 (CAL)

Kabu Malik v. State of West Bengal

2017-02-10

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2017
JUDGMENT : Sankar Acharyya, J. 1. Being aggrieved by and dissatisfied with the judgment of conviction dated 28th April, 2010 and order dated 29th April, 2010 of sentence of the accused-appellants to suffer imprisonment for life with fine of Rs. 5000/- each and in default of payment of fine for further rigorous imprisonment for six months each for a charge of gang-rape on two victims this appeal has been preferred by the appellants jointly. Aforesaid judgment and order were passed by learned Additional Sessions Judge, 14th Court, Alipore, South 24 Parganas in Sessions Trial No. 4(2) of 2002 arising out of Sessions Case No. 43(10) 2001. Said judgment and order are hereinafter termed as impugned judgment. 2. The appellants are in judicial custody. 3. At the very outset we like to note that since inception of the case at Sonarpur police station a mistake was carried over till pronouncement of the impugned judgment in the trial Court. The allegation/charge of 'gang-rape' was described as offence under Section 376G or 376(g) of the Indian Penal Code instead of 376(2)(g) of the Indian Penal Code. Be it noted that Section 376G or Section 376(g) is unknown to the Indian Penal Code although there is provision of law for the offence 'gang-rape' in Section 376(2)(g) of the Indian Penal Code. 4. In view of the provisions of Section 228A of the Indian Penal Code detailed description of the identity of two victims of alleged gang-rape is avoided in this judgment. As per prosecution case the two sisters (hereinafter the married elder sister is described as 'R' and the unmarried younger sister is described as 'S') were raped by the appellants one after another entering with some others into dwelling house of the victims in between 11:00 p.m. to 12:00 midnight of 8th April, 2001. The incident was reported by the mother (P.W. 1) of the victims at Sonarpur police station on the following morning (on 9.4.2001) at 9:45 a.m. and said written information was registered as FIR by P.W. 8 as Assistant Sub-Inspector attached to the police station at that time. The incident was reported by the mother (P.W. 1) of the victims at Sonarpur police station on the following morning (on 9.4.2001) at 9:45 a.m. and said written information was registered as FIR by P.W. 8 as Assistant Sub-Inspector attached to the police station at that time. P.W. 8 made his written endorsement (exhibit - 7/1) receiving the FIR (exhibit - 7) and drew up formal FIR (exhibit - 6) on 9.4.2001 at 9:45 a.m. in course of his discharging duty at police station between 8:00 a.m. to 2:00 p.m. on that date as appears from the deposition of P.W. 8. Nothing contrary to it reveals from the evidence of P.W. 8 and exhibits 6, 7 and 7/1. Since the endorsement (exhibit - 7/1) in exhibit - 7 appears to have been torn out the writings cannot be read at present. Signature portion of P.W. 8 still remains. However, it is clear that at the time of recording evidence of P.W. 8 endorsement portion was not torn out. Nothing was suggested even to P.W. 8 during his cross-examination to disbelieve him. 5. The allegations made by illiterate P.W. 1 in exhibit - 6 in a nutshell is that in the night of 8.4.2001 the P.W. 1 and her daughter 'S' were sleeping on a cot and her another daughter 'R' was sleeping separate in the same varandah of their house. At about 11:30 p.m. 7/8 miscreants trespassed into the house and some of them committed rape on 'R' simultaneously. They also committed rape on 'S' simultaneously. Then the miscreants told the other two daughters of P.W. 1 to open the door and abused them in filthy language. Said two daughters of P.W. 1 opened the door and caught hold of the feet of the miscreants to spare them without torture when the miscreants told them that one Badal was driven out with help of some boys of Kharki and said Badal should be brought back by the next date and the miscreants threatened that more injury would be caused upon them if they would not call back Badal by the next date. P.W. 1 and her daughters could identify the appellants (named) among the miscreants. 6. P.W. 1 and her daughters could identify the appellants (named) among the miscreants. 6. On 09.04.2001 both the victims were examined by P.W. 5 who was a doctor at Sonarpur Rural hospital but he did not find any apparent external injury on their persons or any mark of violence or nail scrap or hair on their private parts and he found hymen of both the victims absent. However, he suggested for examination of the victims by specialist in any institution (Medical College) for opinion. His report was marked exhibit-3 during trial. 7. On 10.4.2001 the FIR was produced before the Magistrate in Court and it was acknowledged putting signature without seal with date but it was not written in order-sheet. On that date both the victims were medically examined by P.W. 9 as Assistant Chief Medical Officer of Health (Medico-Legal), 24 Parganas (South). The reports of P.W. 9 were marked exhibits 8 and 9 during trial. On the same date 10.4.2001 statements of both the victims were recorded by P.W. 6. Said statements have been marked exhibits 4 and 5 during trial. 8. After eighteen days (on 26.4.2001) of the alleged incident of rape the victim elder sister 'R' committed suicide consuming poison. P.W. 12 as Sub-Inspector of Sonarpur police station held inquest (report is exhibit - 2) over the dead body of 'R' and on 27.4.2001 the P.W. 10 held post mortem examination (report is exhibit - 13) over the dead body of 'R'. 9. In the trial charge was read over and explained to the three accused appellants as- "That you, the above named accused persons on 8th April 01 at 11-00 p.m. or 12 in the night of that day (Sunday) along with other 8/9 persons, in furtherance of common intention, entered the house of one" (named P.W. 1 which is not mentioned here) at (mentioned in 'charge' the names of village, P.O., P.S. and district which are also not mentioned here) committed gang-rape i.e. one after another to one (named 'R') since deceased and another (named 'S') both daughter of aforesaid (named P.W. 1 and her husband) and thereby committed offence punishable u/s. 376(g) of Indian Penal Code and within the cognizance of this Court of Sessions". 10. 10. We reiterate that in the said charge 'gang-rape' was described as punishable erroneously under Section 376(g) of the Indian Penal Code instead of the appropriate Section 376(2)(g) of the Indian Penal Code. Similarly, in the impugned judgment finding the accused persons guilty of the offence of gang-rape, they were convicted and sentenced erroneously mentioning Section 376(G) of the Indian Penal Code instead of Section 376(2)(g) of the Indian Penal Code. Be it noted that either Section 376(g) or 376(G) are absent in the Indian Penal Code. 11. Pointing out such errors in the charge and impugned judgment learned advocate for the appellants argued that the entire proceeding is void ab initio and the impugned judgment is bad in law and therefore, liable to be set aside. However, he submitted that the case may be remanded back to the trial Court for de novo trial. 12. In reply to that arguments learned Additional Public Prosecutor advanced the arguments that the charge which was read over and explained to the accused persons was clearly understandable to them as to why and in respect of which allegation they were being proceeded for trial and so, by misquotation of the Section of the Indian Penal Code did not occasion a failure of justice. He submitted that all along the accused persons defended themselves against the allegation of their committing gang-rape on 'R' and 'S' in the fateful night of 8.4.2001 in the dwelling house of P.W. 1. According to him, the requisite particulars of Section 212(1), 213 and 214 of the Code of Criminal Procedure (in short Cr.P.C.) are present in the charge framed against the accused persons. In his usual fairness he submitted that except in mentioning the proper section of law there is no other error in the charge framed against the accused persons but according to him, such an error in mentioning the proper Section of law in the FIR, charge and impugned judgment is unexpected in dealing with a sessions triable grave offence. He claimed that in view of the provisions under Section 464 of the Cr.P.C. the trial in the case under this appeal cannot be said as vitiated and it is not at all a fit case for recommencement of trial only because a wrong Section of law was quoted though there was no failure of justice. 13. He claimed that in view of the provisions under Section 464 of the Cr.P.C. the trial in the case under this appeal cannot be said as vitiated and it is not at all a fit case for recommencement of trial only because a wrong Section of law was quoted though there was no failure of justice. 13. Having considered the materials on record and the arguments advanced before us in this appeal in connection with an offence took place sixteen years back we are convinced to accept the arguments advanced by learned Additional Public Prosecutor in view of the provisions under Section 215 read with Section 465 of the Cr.P.C. also. But we feel it necessary to note that it is not at all expected from an Additional Sessions Judge that he would frame a charge of grave offence punishable with imprisonment for life without going through the Section of Law which was being mentioned in the charge. It is unfortunate to note that the Additional Sessions Judge who has been vested with power to award capital punishment also awarded imprisonment for life carelessly mentioning a Section of law in the impugned judgment which Section does not find place in the law book. Similar mistake was done by the Assistant Sub-Inspector of Police (P.W. 8) at Sonarpur police station at the time of registering the case on receiving FIR from P.W. 1 on 09.04.2001. Had there been no mention of the offence as gang-rape in the charge or any remarkable error in mentioning time and place of the commission of the offence and the names of the victims of the crime as required under Section 412, Cr.P.C. and if the accused persons would not defend themselves against the allegations of facts made by prosecution against them this Court of appeal would not have any alternative than to order for recommencement of trial in this sixteen years old matter. However, in the prevailing circumstances we find that the trial is not vitiated due to error in mentioning appropriate Section of law in the charge and impugned judgment. However, in the prevailing circumstances we find that the trial is not vitiated due to error in mentioning appropriate Section of law in the charge and impugned judgment. Taking into all relevant factors we find and hold that due to misquotation of Section of law only in the charge as well as impugned judgment the trial is not vitiated and on that ground alone the impugned judgment need not be set aside as there was no failure of justice for that sole reason. 14. Leaned advocate for the appellants drew our attention to the exhibits 6 and 7 (FIR) wherein learned Magistrate put the date 10.04.2001 of his signature on the FIR dated 09.04.2001. He also drew our attention to the provisions of Section 157 of the Cr.P.C. and argued that violating the categorical provision for sending the FIR from police station forthwith to the Magistrate the FIR which was allegedly recorded at 9:45 a.m. on 09.04.2001 was sent to the learned Magistrate on 10.04.2001. He further submitted that the FIR is ante-timed as would be evident from the deposition of P.W. 1 and the scribe (P.W. 11) of the FIR. He advanced his arguments that the names of accused-appellants were incorporated in the FIR subsequently. 15. In reply, learned Additional Public Prosecutor drew our attention to the deposition of P.W. 8 who recorded the FIR at police station on 09.04.2001 at 9:45 a.m. receiving the complaint of P.W. 1 during his duty hours between 8:00 a.m. to 2:00 p.m. He submitted that there was no question to P.W. 8 for any explanation of delay in despatch of the FIR to the learned Magistrate and P.W. 8 was not even suggested that names of accused were incorporated in FIR subsequently. He advanced his arguments that P.W. 12 being the investigating police officer visited the place of occurrence and seized some articles therefrom on the basis of FIR on 09.04.2001 at 11:30 a.m. which is evident from cross-examination of P.W. 12 duly corroborated by rough sketch map (exhibit - 15) and seizure list (exhibit - 1). P.W. 12 was also not asked about the date and time of despatch of the FIR from police station sending it to Court. P.W. 12 was also not asked about the date and time of despatch of the FIR from police station sending it to Court. He further submitted that P.W. 12 produced both the victims 'R' and 'S' before P.W. 5 for medical examination which fact is also proved by P.W. 12, P.W. 5 and P.W. 2 (victim 'S'). Regarding the depositions of P.W. 1 and P.W. 11 about time of writing the complaint at 2:00/2:30 p.m. on 09.04.2001 in the house of P.W. 1 it has been argued on behalf of the State that no such complaint which was written at 2:00/2:30 p.m. on 09.04.2001 was ever lodged at police station and since the P.W. 8 is an independent witness and he firmly stated that he received exhibit - 7 written complaint from P.W. 1 on 09.04.2001 at 9:45 a.m. and put his endorsement (exhibit - 7/1) thereon and drew up exhibit - 6 formal FIR and nothing contrary was elicited in his cross-examination nothing wrong can be inferred about lodging of FIR and forwarding the same to the learned Magistrate. 16. Having considered the materials on record the relevant factors which impel us to believe that P.W. 8 acted independently at police station on 09.04.2001 between 8:00 a.m. to 2:00 p.m. and he had no scope to receive any complaint of P.W. 1 which was written as stated by P.W. 1 and P.W. 11 at 2:00/2:30 p.m. in the house of P.W. 1. It is significant to note that it transpires from exhibit - 6 that it was registered at police station by P.W. 8 on 09.04.2001 at 9:45 a.m. and names of accused-appellants were very much present there. It also transpires from exhibit - 6 that the distance between the police station and place of occurrence which is the house of P.W. 1 is 10 kms. Exhibit - 7 also contains the names of three accused-appellants as members of the gang of 7/8 miscreants who could be identified in that gang by P.W. 1 as eye-witness of occurrence. As such, we cannot accept that the FIR was ante-timed or names of accused-appellants were written in the FIR subsequently. Exhibit - 7 also contains the names of three accused-appellants as members of the gang of 7/8 miscreants who could be identified in that gang by P.W. 1 as eye-witness of occurrence. As such, we cannot accept that the FIR was ante-timed or names of accused-appellants were written in the FIR subsequently. Relating to the arguments on behalf of the appellant about delayed forwarding the FIR from police station to Magistrate we find that neither P.W. 8 nor P.W. 12 was asked for giving explanation as to why the FIR dated, 09.04.2001 was signed by learned Magistrate on 10.04.2001. As such, only on the basis of putting signature by learned Magistrate on 10.04.2001 it cannot be said that provision under Section 157, Cr.P.C. for sending the first information report forthwith from police station to Magistrate was not complied with. Even if we believe for the sake of arguments that the FIR which was registered at police station on 09.04.2001 at 9:45 a.m. was forwarded to learned Magistrate on 10.04.2001 it will not be a cogent ground to disbelieve the whole prosecution case on that count. Therefore, we accept the arguments advanced on behalf of the State on this point. 17. Next phase of arguments of learned advocate for the appellants is that the investigating police officer (P.W. 12) did not examine vital witnesses including the husband of P.W. 1 and also two daughters of P.W. 1 who were present in the room when the alleged occurrence took place in the varandah of the house and came out of the room at the instance of miscreants as alleged. Learned Additional Public Prosecutor for the State argued that in a case of rape victim's evidence is of paramount importance. If victim's evidence is found convincing corroboration is not necessary. According to him, P.W. 2 is one of the two victims and another victim committed suicide on 26.04.2001 i.e. shortly after the shameful incident dated 08.04.2001. She gave her statement about the occurrence before P.W. 6 on 10.04.2001 and said statement was recorded under Section 164, Cr.P.C. administering oath to her. He further argued that P.W. 1 is the mother of both the victims and she is eye-witness of the occurrence of the night of 08.04.2001. She gave her statement about the occurrence before P.W. 6 on 10.04.2001 and said statement was recorded under Section 164, Cr.P.C. administering oath to her. He further argued that P.W. 1 is the mother of both the victims and she is eye-witness of the occurrence of the night of 08.04.2001. According to him, non-examination of the husband and other two daughters of P.W. 1 cannot be considered fatal and non-examination of neighbouring people may not be considered to have any consequence. He also submitted that there is no evidence on record to prove that husband of P.W. 1 was present in the house in that fateful night. 18. During trial, P.W. 1 was examined and cross-examined on oath. She is the informant of the case as she lodged exhibit - 7 complaint at P.S. In exhibit - 7 she expressed her apprehension of publicity of the scandal which may create problem in giving her daughters in marriage. She requested the officer-in-charge of the police station to keep in mind that aspect during investigation. Under such circumstance, non-examination of the other daughters of P.W. 1 by the investigating police officer would not be essential for the completion of the investigation. There is no positive evidence on record that in the fateful night the husband of P.W. 1 was present in their house. As such, his non-examination is also not fatal. P.W. 2 was examined and cross-examined on oath as a victim of the occurrence. She also made statement before P.W. 6 and her statement (exhibit - 5) was recorded under Section 164, Cr.P.C. It is undisputed that another victim 'R' died on 26.04.2001 due to her unnatural death. There is no evidence on record that any other person had direct knowledge of the occurrence but not examined as a witness. The persons whose names transpired during trial might have gathered knowledge about the occurrence from P.W. 1 or victims. As such, they would give evidence on the basis of hearsay. Their non-examination as witnesses cannot be considered as fatal for the prosecution. In a criminal trial evidence is not required to be counted by number of witnesses but to be weighed even in case of a single witness. As such, they would give evidence on the basis of hearsay. Their non-examination as witnesses cannot be considered as fatal for the prosecution. In a criminal trial evidence is not required to be counted by number of witnesses but to be weighed even in case of a single witness. Strong possibility of witnessing any incident by particular person(s) and non-examination of such person(s) as witness sometimes becomes relevant factor for determining a question as to whether such vital witness who might have thrown light for unfolding the truth of any incident was withheld or not. But here, there is nothing within four corners of the record to suggest that any vital witness was deliberately withheld by prosecution without special reason for which an adverse inference may be drawn against the prosecution. Therefore, we find that non-examination of any person as witness in this case does not affect the prosecution case. 19. Referring to the depositions of P.W. 1, P.W. 2, P.W. 5, P.W. 9, P.W. 11 and P.W. 12 and to the exhibited FIR and medical reports learned advocate for the appellants argued that there are exaggerations and embellishments in the depositions of P.W. 1 and P.W. 2 and that there is no sufficient evidence to prove that 'R' and 'S' were ravished and that the names of accused-appellants were written subsequently in the complaint of FIR in consultation with some political leaders with whom the accused persons had political enmity and that prosecution failed to prove any source of light by which the P.W. 1 and the victims might have identified the accused persons. He submitted that the prosecution relied upon interested witnesses like P.W. 1 and police officials and doctor of police hospital and their evidence should be scrutinized carefully which was not done in the impugned judgment. He cited the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 . He also relied on the decision of the Supreme Court in the case of Ishwar Singh Vs. State of U.P. (1976) 4 SCC 355 to contend that ante-timing the FIR, delay and other inconsistencies were factors for which the accused should have been acquitted. The judgment of Mehraj Singh Vs. State of U.P., (1994) 5 SCC 188 and Kailash Gaur Vs. State of Assam, (2012) 2 SCC 34 were also relied upon by the learned counsel for the appellants. The judgment of Mehraj Singh Vs. State of U.P., (1994) 5 SCC 188 and Kailash Gaur Vs. State of Assam, (2012) 2 SCC 34 were also relied upon by the learned counsel for the appellants. It was submitted that three eye-witnesses were not examined, and faulty investigation ought not to lead to conviction on the basis of suspicion. Learned advocate for the appellants submitted that all the appellants should be found not guilty of the alleged offence in trial and they deserve acquittal setting aside the impugned judgment on merit in this appeal. 20. Learned Additional Public Prosecutor for the State argued that in a case of sexual assault evidence of victim is of paramount consideration. He submitted that in the instant case, victim 'R' died within a very short time of only 18 days of the incident of rape on this married lady but after the occurrence her statement under Section 164, Cr.P.C. was recorded by P.W. 6 and that the another victim 'S' has been examined and cross-examined as P.W. 2 and that the P.W. 1 is the mother of married 'R' and unmarried 'S' and it is out of imagination that the mother would depose on oath about gang-rape on her said daughters. As such, they cannot be termed as interested witnesses to rope in some innocent persons falsely also putting false stigma by P.W. 1 of rape victims on her daughters in the society. According to him, nothing transpires from the totality of evidence led by prosecution to establish even by preponderance of probability that P.W. 1 or P.W. 2 or 'R' had enmity with the accused-appellants for which the appellants were made accused in the case of gang-rape. He advanced his arguments that no enmity between police witnesses or doctor witnesses and the appellants was also established for which independent status of said witnesses could be doubted. He submitted for dismissal of the appeal confirming the impugned judgment and order of conviction and sentence of the accused-appellants for their committing the offence of gang-rape on 'R' and 'S' in the fateful night of 08.04.2001. 21. We have carefully gone through the citation reported in AIR 1984 SC 1622 (supra) and the evidence adduced by prosecution in trial as a whole keeping ourselves away from being influenced by isolated scrutiny. 21. We have carefully gone through the citation reported in AIR 1984 SC 1622 (supra) and the evidence adduced by prosecution in trial as a whole keeping ourselves away from being influenced by isolated scrutiny. Of course, we like to consider the evidence with due care and caution and to accept that evidence which is intrinsically reliable and inherently probable adopting the principle of separating grains from the chaff. 22. In the instant case, the illiterate P.W. 1 complained at police station that in the night of 08.04.2001 while she alongwith "S' on one bed and 'R' on an another bed in the varandah of their house were sleeping, 7/8 miscreants trespassed in the house and several miscreants ravished 'R' and 'S'. In her complaint she expressed her apprehension that she would have problem in giving in marriage to her unmarried daughters if the scandal would be made public. She mentioned the names of three accused-appellants as could be identified by her among the miscreants. Said names were written at the bottom which apparently appears as was written after completion of writing the alleged incident and apprehension of P.W. 1. But it is obvious that the names of accused-appellants were written before P.W. 1's putting thumb impression and for want of space at the right side of the thumb impression name of P.W. 1 was written and at the left side her pen man (P.W. 11) signed. Defence of the accused persons as disclosed during cross-examination of witnesses of prosecution and examination of accused persons is that they are not guilty of the alleged offence and that 'R' had no cordial relation with her husband for her husband's second marriage and that there was political rivalry between P.W. 1 and accused persons and that the husband of P.W. 1 took Rs. 30,000/- as earnest money from one Basishta Bar for selling a piece of land but under political influence he (husband of P.W. 1) in order to grab that money drove out one Badal Naskar from the village and divulged before the accused persons that said money would not be repaid and that there was no incident of rape on 'R' and 'S' as alleged and that the accused persons were falsely implicated in the case. Prosecution examined twelve witnesses and also adduced fifteen documents as evidence in trial but accused persons did not adduce any evidence. 23. Prosecution examined twelve witnesses and also adduced fifteen documents as evidence in trial but accused persons did not adduce any evidence. 23. In the instant case under appeal, during trial out of twelve witnesses of prosecution P.W. 3 (a co-villager of P.W. 1), P.W. 4 (a neighbour of P.W. 1) and P.W. 7 (a co-villager of P.W. 1) were declared hostile. It is a case relating to an offence of gang-rape upon two sisters as alleged by prosecution. The allegation is very serious. Ordinarily, eye-witness other than the victim is hardly available in a rape case but in the instant case the mother (P.W. 1) of the two alleged victims facing lengthy cross-examination has deposed claiming herself as an eye-witness and the P.W. 2 as one of the victims also facing lengthy cross-examination has deposed claiming that she was ravished and she also witnessed the incident of gang-rape upon her elder sister 'R' who committed suicide after 18 days of the incident of gang-rape. 24. Both the P.W. 1 and P.W. 2 identified the three accused-appellants as authors of the crime. P.W. 5 examined medically to P.W. 2 and 'R' on 09.04.2001 at Sonarpur Rural hospital and on examination he did not find external injury on their body or sign of violence in their private parts or nail scrap or hair but he found their hymen ruptured although he mentioned in exhibit - 3 that he found hymen of them absent. He referred both the victims to specialist in institution (Medical College and Hospital, Calcutta) for their examination. P.W. 5 did not express any opinion as to whether the victims were sexually assaulted or not. During his cross-examination he opined that nail marks and mark of violence by three persons on a female may or may not be found on the thigh of the victim and injury on private parts of a victim may or may not be found even if three persons commit rape forcibly to her and injury on back side of the victim may or may not be found if three persons consecutively raped upon her. P.W. 5 stated that he mentioned in his report that there was no nail scrap or hair on the private parts and hymen is absent. He also stated that there is no instrument in their hospital for examination of injury in private parts of such patients. 25. P.W. 5 stated that he mentioned in his report that there was no nail scrap or hair on the private parts and hymen is absent. He also stated that there is no instrument in their hospital for examination of injury in private parts of such patients. 25. P.W. 6 as Judicial Magistrate recorded statements of both the victims on 10.04.2001 under Section 164, Cr.P.C. P.W. 6 proved the said statements as exhibits 4 and 5. It reveals from his evidence that he recorded voluntary statements of 'R' and 'S' following the legal formalities. He denied the suggestion during cross-examination that the victim girls were actually tutored by police personnel. 26. P.W. 8 received the complaint of P.W. 1 at police station and drew up the formal FIR on 09.04.2001 at 09:45 a.m. P.W. 9 as A.C.M.O.H. (Medico legal), 24 Parganas (South) examined 'R' and 'S' on 10.04.2001. He opined that 'S' had undergone recent sexual intercourse. He also opined that 'R' was capable of sexual intercourse and he mentioned in his report (exhibit - 9) that it is not possible to say exactly whether 'R' was raped or not but in all possibilities she underwent sexual intercourse. In cross-examination he denied that he opined on examination of the victim girls at the request of the investigating police officer and that the real observation were not reflected in his reports. He also stated that if a female was raped forcibly and successively by three persons expectedly there would be (injuries) on thigh and private parts of the victim (in the recording of evidence the word 'injuries' has not been used). He also medically examined the three accused persons and found each of them capable for sexual intercourse which evidence is unchallenged. 27. P.W. 10 held post mortem examination over the dead body of 'R' on 27.04.2001 but did not arrive at the conclusion regarding cause of her death. P.W. 11 wrote the exhibit - 7 under instruction of P.W. 1. During his cross-examination he stated that subsequently he mentioned the name of accused persons at the bottom of the said FIR in consultation with the neighbours who belong to C.P.I. (M) party and police officers. He wrote the same at the house of P.W. 1 at 2 to 2:30 p.m. in presence of police and local people. P.W. 12 investigated the case. 28. He wrote the same at the house of P.W. 1 at 2 to 2:30 p.m. in presence of police and local people. P.W. 12 investigated the case. 28. We have already discussed that names of accused persons were written in exhibit - 7 before P.W. 1's putting LTI on it and the names of accused persons were written by P.W. 8 on 09.01.2001 within his duty hours between 8:00 a.m. to 2:00 p.m. which has been written as 9:45 hrs in exhibit - 6. Nothing contrary to it appears in cross-examination of P.W. 8. As such, the statement of P.W. 11 made during cross-examination contrary to the above facts cannot be used to disbelieve P.W. 8 whose evidence is strongly corroborated by exhibits 6 and 7. We do not have doubt to say that the statement, referred to above made by P.W. 11 in his cross-examination is not the true state of affairs. In this connection, it will not be out of place to mention that in examination in chief P.W. 1 stated, "On the next day morning I thereafter narrated the incident to my neighbour Tiloka who instructed me to go to one political person named Janardhan and I met with the said Janardhan who also advised me to file to case. Thereafter, I went to the P.S. Sonarpur and lodged a written complaint against the accused persons. The said written complaint was written by one (named P.W. 11) of our village. I put my LTI on the written complaint". 29. In her lengthy cross-examination unusually which took place on 09.09.2003, 03.12.2003, 04.12.2003, 05.12.2003, 28.01.2004, 30.01.2004, 15.03.2004, 17.03.2004, 26.04.2004 and 29.04.2004 the P.W. 1 on 17.03.2004 inter alia stated, "I attended Sonarpur P.S. at about 9-00/9-30 AM, on the next day of the occurrence i.e. on 09.04.2001. Complain was prepared at Sonarpur P.S. and another complain was written in my house. The Duty Officer of the P.S. Sonarpur also recorded my statement. I do not know whether the statement given at the P.S. at first was treated as FIR or not. The complain prepared in my house in presence of police, Janardhan Bag, Joydev Bodak, Tiloka Mondal and some other C.P.M. Party members". 30. The Duty Officer of the P.S. Sonarpur also recorded my statement. I do not know whether the statement given at the P.S. at first was treated as FIR or not. The complain prepared in my house in presence of police, Janardhan Bag, Joydev Bodak, Tiloka Mondal and some other C.P.M. Party members". 30. In our considered opinion a doubt might have been cast upon genuineness of the exhibit-7 if there would not have the exhibit-7/1 endorsement of P.W. 8 on exhibit-7 and duty hours of P.W. 8 would have continued beyond 2:00 p.m. on 09.04.2001 and there would have been any suggestion to P.W. 8 that he prepared exhibit-6 subsequently after his duty hours of that date with any oblique motive. We are not convinced to doubt with reasoning that the accused persons might have been implicated after lodging of the real FIR at police station at the instance of police and/or any politically biased person. Since no direct nexus of the persons whose names were mentioned by P.W. 1 with the commission of the alleged incident is established in this case their non-examination as witnesses cannot be treated as fatal for the prosecution. In our opinion, consultation made by illiterate P.W. 1 after occurrence with some others for getting advice about her course of action is not at all a sin but is quite natural for an illiterate village woman. 31. In respect of the arguments on behalf of appellants on the point of exaggeration and embellishment it appears from exhibit-7 that in FIR P.W. 1 did not mention that the miscreants threatened her at the point of gun but in her deposition she made such statement. In her cross-examination she stated that miscreants put a gun at her while she was sleeping at sky face and two miscreants stood before her and seeing them she became frightened. She also stated that in the FIR she stated that the miscreants threatened her at the point of gun. It is a matter of consideration as to whether absence of such statement in FIR is an omission or contradiction and whether the evidence of P.W. 1 in that respect is exaggeration and embellishment or not. She also stated that in the FIR she stated that the miscreants threatened her at the point of gun. It is a matter of consideration as to whether absence of such statement in FIR is an omission or contradiction and whether the evidence of P.W. 1 in that respect is exaggeration and embellishment or not. We have gone through the entire deposition of P.W. 1 wherefrom it appears that she could not be shaken from her stand point that her two daughters 'R' and 'S' were raped by several persons in the fateful night on the cots laid in their varandah where 'R and 'S' were sleeping. P.W. 1 claims herself as eye-witness of that terrible incident. She is the mother of two victims. In normal course of human conduct, it may be presumed that unless she was prevented by any force and she would be frightened as claimed by her, certainly she would react otherwise and would not be a silent spectator witnessing the incidents of rape by several persons simultaneously on her two daughters of whom one was sleeping with P.W. 1. Circumstance, established about the occurrence from the evidence of P.W. 1, leans to suggest that P.W. 1 omitted to mention in FIR (exhibit-7) that she was threatened by miscreants at point of gun. Statement of P.W. 1 in that connection may not be considered as her exaggeration or embellishment or contradiction. 32. Medical evidence adduced by prosecution speaks that on 09.04.2001 P.W. 5 medically examined 'S' and 'R' at Sonarpur Rural Hospital and prepared his reports which have been marked exhibits 3 and 4 respectively. He did not express any opinion as to whether 'S' and 'R' were sexually assaulted in the night of 08.04.2001 or not. He did not find external injury or sign of violence on the body or private parts of the victim but he opined that injury on body or private parts of the victims of rape committed by three persons may or may not be available. He referred the victims to specialist of institution specifying medical college for opinion. The victims were subsequently examined on 10.04.2001 by P.W. 9 who was not attached to any medical college but was posted as A.C.M.O.H. (Medico Legal) in the district of 24 Parganas (South). His reports of examination of 'S' and 'R' have been marked exhibits 8 and 9. He referred the victims to specialist of institution specifying medical college for opinion. The victims were subsequently examined on 10.04.2001 by P.W. 9 who was not attached to any medical college but was posted as A.C.M.O.H. (Medico Legal) in the district of 24 Parganas (South). His reports of examination of 'S' and 'R' have been marked exhibits 8 and 9. In the evidence of P.W. 9 read with exhibits 8 and 9 it was opined that both 'S' and 'R' were capable to sexual intercourse and that 'S' had undergone recent sexual intercourse. Undisputedly, at the relevant time 'R' was a married lady aged about 28 years having a child. On ossification test of 'S' at M.R. Bangur Hospital, Calcutta on 21.06.2001 her age was ascertained as 15 to 17 years as per exhibit - 14. Medical evidence adduced by prosecution neither strongly corroborates any incident of rape on 'S' and 'R' in the night of 08.04.2001 nor it rules out such incident. Under such situation the evidence of P.W. 1, P.W. 2, exhibit - 4 and exhibit - 5 are of paramount importance in a case with allegation of gang-rape upon 'S' (P.W. 2) and 'R' (since deceased). 33. According to the facts in Sharad Bindhichand Sarda Vs. State of Maharashtra (Supra) there was no eye-witness of the incident of causing death to the victim but the case under this appeal is based on evidence of eye-witnesses including depositions of victim 'S' as P.W. 2 and her mother P.W. 1 and statements of both the victims recorded by P.W. 6 under Section 164, Cr.P.C. recorded within 48 hours of the alleged incident. In the reported case the victim could not be examined as witness but her close relations were examined as witnesses who stated about the troubles and tribulations of the victim as narrated by victim. In the instant case, also victim 'R' could not be examined as a witness in trial due to her death shortly after the occurrence but her narration of facts was recorded by P.W. 6 Judicial Magistrate whose independent position is not in question. In paragraph 48 of the reported decision the Hon'ble Apex Court observed, "Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. In paragraph 48 of the reported decision the Hon'ble Apex Court observed, "Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witness in order to see that the offender is punished. This is human psychology and no one can help it". 34. In our view, the ratio of that principle is not applicable for consideration of the evidence of P.W. 6. Since P.W. 2 is one of the victims and P.W. 1 is her mother and eye-witness of the occurrence, their depositions may be compared with their earlier statements with due care and caution to consider as to whether they exaggerated the facts or added new facts in their depositions to see the accused persons are punished. Earlier version of P.W. 1 is exhibit - 7 FIR and of P.W. 2 is exhibit - 5 i.e. the statement under Section 164, Cr.P.C. 35. In a foregoing paragraph we have discussed about exhibit - 7 and deposition of P.W. 1. We like to add here that P.W. 1 stood with credibility during cross-examination facing dozens of irrelevant or remote relevant questions also. 36. P.W. 2 made statement (Exhibit - 5) on 10.04.2001 before P.W. 6 corroborating the prosecution case in substance as per exhibit - 7 dated 09.04.2001. We like to add here that P.W. 1 stood with credibility during cross-examination facing dozens of irrelevant or remote relevant questions also. 36. P.W. 2 made statement (Exhibit - 5) on 10.04.2001 before P.W. 6 corroborating the prosecution case in substance as per exhibit - 7 dated 09.04.2001. But in exhibit - 5 she mentioned the number of miscreants as 10/12 persons which was mentioned as 7/8 persons in exhibit - 7. Exhibit - 5 corroborates the P.W. 1 that miscreants placed gun near the head of P.W. 1. In exhibit - 5 P.W. 1 also stated that one person placed iron rod also and that tied the mouth of P.W. 1 but such statement was not made by P.W. 1 in exhibit - 7 or in her deposition and so for want of corroboration by P.W. 1 we do not accept that the mouth of P.W. 1 was tied by miscreants. However, evidence of P.W. 2 and exhibit - 5 is more or less corroborative each other and said evidence is not considered to be exaggeration or embellishment though it is true that in exhibit - 5 she did not specifically mention the name of appellant Tarun Mondal as one of the miscreants but as P.W. 2 she identified him as an accused in her deposition. Be it noted that in exhibit - 5 she stated that Kabu, Kanchi and an another person raped her and in her deposition P.W. 2 stated that three accused persons raped her. She also could not be shaken in cross-examination from her assertive evidence against the accused persons about commission of the offence. In our opinion, the evidence of P.W. 2 as a whole by separating the grains from the chaff and ignoring minor discrepancy is the best evidence of prosecution and it needs no corroboration. The ratio of the other authorities cited on behalf of the appellant do not apply in the facts of this case, having regard to the nature or quality of evidence adduced by the prosecution. We are not unmindful that P.W. 2 did not utter the name of appellant No. 3 in exhibit-5 but she stated that name in deposition. Mentioning of that name in the deposition only might be considered as her subsequent development and exaggeration if name of Tarun Mondal would not transpire in any other evidence. We are not unmindful that P.W. 2 did not utter the name of appellant No. 3 in exhibit-5 but she stated that name in deposition. Mentioning of that name in the deposition only might be considered as her subsequent development and exaggeration if name of Tarun Mondal would not transpire in any other evidence. Since the three female persons P.W. 1, 'R' and 'S' are the eye-witnesses of the entire occurrence the evidence appears in deposition of P.W. 1, exhibit-7 and exhibit-4 should also be taken into consideration for unfolding the truth as to whether Tarun Mondal (appellant No. 3) has been falsely implicated in the case or not. 37. Exhibit - 7 is the first information report (FIR) which was lodged at police station by P.W. 1 in the following morning of the fateful night i.e. on 09.04.2001 at 09:45 a.m. This document states that name of appellant No. 3 was also mentioned as one of the miscreants like the other two appellants at the same time. P.W. 1 also deposed in the same tune. Although since inception the case of the prosecution is that there were 7/8 or more persons in the gang of the miscreants of committing gang-rape on 'R' and 'S' but unfortunately police could not trace out the other miscreants beside the three appellants. Victim 'R', since deceased, stated in exhibit - 4 before P.W. 6 that appellant No. 1 (named) and two others (names are not mentioned) forcibly committed rape on her in that night. Her said evidence is also very important to believe that in the fateful night she was raped by more than one person of the gang of miscreants, there is specific evidence of P.W. 2 that appellant No. 3 Tarun Mondal also committed forcible sexual intercourse on 'S'. It is true that in exhibit - 5 P.W. 2 did not state the name of appellant No. 3. 38. It is evident from exhibit - 7 and deposition of P.W. 1 that appellant No. 3 was also present in the gang of miscreants at the time of commission of the offence of gang-rape on 'R' and 'S'. Be it noted as significant that excepting commission of gang-rape no other charge was brought against any appellant. 38. It is evident from exhibit - 7 and deposition of P.W. 1 that appellant No. 3 was also present in the gang of miscreants at the time of commission of the offence of gang-rape on 'R' and 'S'. Be it noted as significant that excepting commission of gang-rape no other charge was brought against any appellant. Therefore, we have no hesitation to hold that the members in the gang of the miscreants had only intention to commit rape on the daughters of P.W. 1 in that night. In our opinion, even in the absence of categorical evidence to prove that appellant No. 3 himself also committed sexual intercourse on the victims he shall also be deemed to have committed gang-rape on 'R' and 'S' in the fateful night as per explanation 1 to Section 376(2)(g) of the Indian Penal Code. Said explanation 1 reads as:- "When 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 Sub-section". 39. Said explanation 1 reads as:- "When 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 Sub-section". 39. In course of arguments learned senior advocate for the appellant gave much emphasis on the defects in investigation pointing out that the investigating officer (P.W. 12) did not seize house articles from the place of occurrence and that P.W. 12 did not show the rooms of the house of occurrence in the sketch map which was drawn by him and that although the medical officer (P.W. 5) suggested for examination of victims by specialist in Medical College but without doing so the P.W. 12 produced the victims before P.W. 9 who was A.C.M.O.H. (Medico legal) of 24 Parganas (South) and that P.W. 12 did not record statements of other two daughters of P.W. 1 who were sleeping inside the room when the occurrence took place at the varandah as alleged and that P.W. 12 did not collect report from Forensic Science Laboratory about result of examination of the seized wearing apparels said to be the same of the victims and that P.W. 12 never produced the general diary entry No. 496 dated 09.04.2001 which has reference in exhibit - 6 and that he did not examine witnesses to prove the age of 'S' and that relating to ossification test of 'S' one x-ray plate of different individual was collected by P.W. 12 and that P.W. 12 did not examine the neighbouring persons as witnesses. 40. We are convinced to hold that P.W. 12 as the investigating police officer discharged his duty carelessly in a half-hearted manner without taking in mind the real gravity of the incident of gang-rape of two sisters in presence of their mother by a gang of miscreants in their dwelling house in the mid night pointing gun at the mother (P.W. 1) by which she remained frightened and silent spectator during the commission of such terrible heinous crime. 41. However, failure of P.W. 12 to seize house hold articles from the place of occurrence does not affect the very root of the prosecution case which is evident in the statements of eye-witnesses including two victims. 41. However, failure of P.W. 12 to seize house hold articles from the place of occurrence does not affect the very root of the prosecution case which is evident in the statements of eye-witnesses including two victims. It is not proved in the case that P.W. 9 was not competent to examine the victims medically as expert though he was not attached to any medical college at the relevant time. Failure on the part of P.W. 12 to collect FSL report is his callousness. Had there been any report which is not favourable to prosecution then also it would not contradict the P.W. 1 and victims because there is no diction of said vital witnesses to the effect that strong evidence would be available in the seized articles by chemical analysis. Be it noted that seized alamats were produced in Court during trial as Mat. exhibit-I collectively. Examination of neighbours and other two daughters by P.W. 12 would be helpful to corroborate the victims and eye-witness P.W. 1. Since after scrutinizing with due care and caution we find the evidence of P.W. 1 and the victims is intrinsically reliable and inherently probable, we are of the opinion that corroboration to their evidence is not needed to arrive at the conclusion. Relating to non-examination of the other two daughters of P.W. 1 the exhibit - 7 attracts our attention where P.W. 1 expressed her apprehension that the scandal would be circulated in public though she is under obligation to give her daughters in marriage. Under such circumstances, non-production of said two daughters of P.W. 1 in witness box for corroborating the substantive evidence of P.W. 1 and her two victim daughters cannot be considered fatal for the prosecution. Be it noted that prosecution does not claim that said two daughters of P.W. 1 actually saw any incident of rape on 'R' and 'S' in the varandah when they remained in a room under closed door. 42. Regarding age of 'S' at the relevant time exhibit - 14 ossification test report has been marked on formal proof being dispensed with. Exhibit - 14 dated 21.06.2001 speaks the age of 'S' was between 15 to 17 years at the time of her examination. No question was put to P.W. 1 who is mother of 'S' about age of 'S'. Exhibit - 14 dated 21.06.2001 speaks the age of 'S' was between 15 to 17 years at the time of her examination. No question was put to P.W. 1 who is mother of 'S' about age of 'S'. During cross-examination P.W. 2 stated on 07.07.03 her age as 15 years, she also stated that at the relevant time of occurrence she was reading in class-VI. Said evidence indicates that at the relevant time of occurrence P.W. 2 was matured enough to understand rape and its consequence. 43. Learned advocate for the appellants also argued that in the absence of specific evidence about any source of light at the time of alleged occurrence the evidence adduced by prosecution regarding identity of accused-appellants cannot be believed. This argument does not appear to us convincing because in lengthy cross-examination of P.W. 1 and P.W. 2 not even a single question was put to them as to how they identified the accused persons although the appellants were identified during their examination-in-chief and in particular, the P.W. 2 stated that these three miscreants committed rape on her successively and forcibly. 44. From the totality of evidence adduced by prosecution one thing is clear that P.W. 1 is a supporter of a particular political party and the accused-appellants are supporters of opposite political party. This circumstance is a double edged weapon. Appellants took the defence that due to political rivalry they were falsely implicated by P.W. 1 in collusion with members of the political party to which she belonged. It is to be considered whether this defence was established by preponderance of probability in the trial or not. 45. In exhibit-7 on the very following morning of the fateful night the P.W. 1 clearly mentioned that in the night of occurrence the miscreants stated that since Badal was driven out bringing the boys of Kharki, said Badal must be called back by the next date; otherwise they would cause more harm to P.W. 1 and others. Appellants did not claim their any relation or connection with said Badal during trial. But the P.W. 1 was asked several questions to P.W. 1 about Badal Naskar. In response to such questions made on behalf of appellants No. 1 and 2 P.W. 1 stated, "I know Badal Naskar, my neighbour villager I know Basistha Bar. Badal Naskar is the bhaira bhai of Basistha Bar. But the P.W. 1 was asked several questions to P.W. 1 about Badal Naskar. In response to such questions made on behalf of appellants No. 1 and 2 P.W. 1 stated, "I know Badal Naskar, my neighbour villager I know Basistha Bar. Badal Naskar is the bhaira bhai of Basistha Bar. There is an agreement for sale of the property on a consideration of Rs. 30,000/- only by and between my husband and Basistha Bar. The agreement for sale however, subsequently was not registered. Badal Naskar was in possession of the said property. My husband did not repay the said advance money of Rs. 30,000/- to Badal Naskar". 46. Again, during cross-examination the P.W. 1 was asked questions in the same topic on behalf of appellant Tarun Mondal to which she answered, "An agreement in respect of piece of land adjacent to our bastoo land was made by and between my husband and one Basistha Bar. My husband did not repay the amount of Rs. 30,000/- relating to the above land to Basistha Bar at the time of occurrence. Not a fact that prior to the occurrence, we under the leadership of one Habul Mondal of village Kharki assaulted and ousted one Badal Naskar and his family in order to grab a sum of Rs. 30,000/- from Basistha Bar, taken by my husband as advance. We threatened the accused person and their family members by saying that we would not repay the said amount of Rs. 30,000/- only". 47. Taking into consideration to the defence case of the appellants we do not find any reason as to why false allegation of such grave incident would have been brought by P.W. 1 against the accused-appellants when the husband of P.W. 1 took money (Rs. 30,000/-) from Basistha Bar who is brother in law of Badal Naskar and successfully drove out Badal Naskar from the village and declined to repay that amount to Basistha Bar specially when no relationship between appellants and said Badal Naskar or Basistha Bar is established. Rather, the prevailing circumstances blink to highlight the averments made in exhibit - 7 that the miscreants threatened P.W. 1 and her daughters with reference to Badal who was driven out at their instance. Rather, the prevailing circumstances blink to highlight the averments made in exhibit - 7 that the miscreants threatened P.W. 1 and her daughters with reference to Badal who was driven out at their instance. By preponderance of probability it can be said that since before the occurrence the accused-appellants remained annoyed against P.W. 1 and her family for their driving out Badal Naskar from the village with announcement and threat to the accused-appellants that they would not refund the advance money amounting to Rs. 30,000/- to Basistha Bar. Exhibit - 7 indicates that such annoyance of appellants prompted them to commit the offence as a mark of revenge. Therefore, we may safely hold and we hold that the accused-appellants hopelessly failed to establish their defence by preponderance of probability when the prosecution successfully proved its case beyond all reasonable doubts. 48. In the impugned judgment the learned Additional Sessions Judge discussed more or less the depositions of all witnesses of prosecution and held, "In the light of my above discussions and observations I find that the prosecution has proved the facts by cogent and sufficient evidence that the accused persons were involved in committing the Gang rape on the date of occurrence as stated by P.W. 1 and 2, who identified them during trial". 49. We do not find reason to differ with that observation. 50. As a result, the conviction and sentence of the accused-appellants awarded in the impugned judgment for their committing gang-rape on P.W. 2 ('S') and her elder sister 'R' (since deceased) in presence of P.W. 1 who is the mother of both the victims in the varandah of their dwelling house in the mid night of 08.04.2001 stand confirmed by us. But, we do not approve the mentioning of Section 376 G of the Indian Penal Code in the impugned judgment as penal provision for convicting the accused persons and awarding punishment to them. We, hereby correct that error stating proper provision of law as Section 376(2)(g) of the Indian Penal Code which should be mentioned instead of Section 376G of the Indian Penal Code in the impugned judgment. Accordingly, finding all the three accused-appellants guilty of the offence of gang-rape under Section 376(2)(g) of the Indian Penal Code we confirm their conviction and sentence as awarded in the trial Court and the impugned judgment is thus modified. Accordingly, finding all the three accused-appellants guilty of the offence of gang-rape under Section 376(2)(g) of the Indian Penal Code we confirm their conviction and sentence as awarded in the trial Court and the impugned judgment is thus modified. With such decision this appeal is disposed of. 51. The L.C.R. along with a copy of this judgment be sent from the Criminal Section of this Court to the trial Court forthwith for information and necessary action. 52. Urgent photostat certified copy of this judgment be made available to the parties expeditiously, if applied for, observing all requisite formalities. 53. I agree.