SANKAR ACHARYYA,J. - (1.) On being convicted under Sections 448/376 (2) (g) of the Indian Penal Code and being sentenced to suffer simple imprisonment of one year each and also to pay fine with default clause and also to suffer rigorous imprisonment for ten years each with fine and default clause respectively awarded in the judgment dated 06.08.2012 passed by learned Additional Sessions Judge, Fast Track (1st) Court, Raiganj in Sessions Trial No. 08 of 2005 corresponding to Sessions Case No. 25 of 2005, three appellants have preferred this appeal. All the convicts are in judicial custody.
(2.) This is a case of committing house trespass and gang rape of a 25 years old house wife, the mother of three children in the mid night on 29.01.2004/30.01.2004 frightening the victim woman as alleged against the three appellants of this appeal. In the following day time of the occurrence the prosecutrix lodged first information report (FIR) at Itahar police station making specific allegations against the appellants by names and police recorded the FIR on 30.01.2004. As per FIR the victim and her three children who were sleeping in a single bed in their bed room are the only witnesses of the alleged occurrence. Police investigated the case and submitted charge sheet against the three appellants under Sections 448 / 376 (2) (g)/506 of the Indian Penal Code . During investigation two appellants Kashim Sk. and Saiful Alam could be arrested by police and they were medically examined on prayer of the investigation police officer. Since the another appellant Sukum Ali was absconding his medical examination could not be done. In the trial Court all the three appellants were tried jointly framing charges under Sections 448 / 376 (2) (g)/506 of the Indian Penal Code . After full trial the appellants were found guilty of the charges under Sections 448 / 376 (2) (g) of the Indian Penal Code and they were found not guilty of the charge under Section 506 of that Code. Defence of the appellants in the trial Court was denial of alleged incident and their false implication in the case by prosecutrix out of previous enmity and grudge. Such defence was not believed as true by the trial Court.
(3.) In course of hearing this appeal, hearing the learned counsel for the parties at the first instance, we were convinced about some curable irregularities took place in examining the accused persons under Section 313 Cr.P.C. As such, under our direction the appellants were examined for the second time under Section 313 of the Code of Criminal Procedure in the trial Court and further opportunity was given to them for adducing evidence but they did not adduce any evidence. said process was adopted by this Court of appeal as the proceeding of trial Court is being continued in this appeal also. In this appeal learned counsel for the appellants advanced arguments that PW 1 is the alleged victim, PW 2 is the husband of PW 1, PW 3 is minor daughter of PW 1 and PW 6 is brother of PW 2 and there exists gulf of contradiction in their depositions inter se and also with the FIR. His further arguments is that the PW 3 is a child witness but her competence was not tested under Section 118 of the Evidence Act. According to him, the statements made by PW 7 who is a neighbour of PW 1 are hearsay and not helpful for the prosecution case. He pointed out that there was delay of 13 hours and 45 minutes in lodging the FIR without explanation. He also argued that the medical evidence does not support the prosecution case which is fatal but not considered by the trial Court. He has claimed that the place of alleged incident is not proved beyond reasonable doubt and the benefit must go in favour of defence. He relied on some judicial pronouncements. It has been submitted by him that the appellants remain in custody for more than six years out of their substantive punishment of imprisonment for ten years as awarded in the impugned judgment and as such, in case this Court of appeal is satisfied about the proof of prosecution case the punishment may be reduced. 4. Learned Additional Public Prosecutor for the State has advanced arguments in support of the conviction and sentence awarded against the appellants. According to him, from the evidence of the prosecutrix read with FIR there is no shadow of doubt about the truthfulness of this illiterate rustic village dweller house wife. More so, the attending circumstances as established from the time of occurrence, place of occurrence, absence of the husband of the prosecutrix from house in the fateful night and failure on the part of appellants to establish even by preponderance of probability any special reason for the prosecutrix to bring such a serious allegation falsely against the appellants, corroborate the prosecution case strongly. Drawing our attention to the exhibit- 8 he has submitted that the place of occurrence is sufficiently identifiable. He also drew our attention to the medical evidence. He advanced his arguments that in substance the medical evidence is corroborative to prosecutrix specially when it is evident from deposition of PW 9 that spermatozoa was detected in the seminal stains on victim's petticoat and there was no suggestion to PW 9 during cross-examination against the truthfulness of the prosecutrix. Relating to the arguments advanced on behalf of appellants about compliance of Section 118 of the Evidence Act before examination of the child witness it has been argued on behalf of the State that the deposition of PW 3 itself speaks that the witness understood the questions put to her during examination and she gave rational answers to the questions which were considered by the learned Judge during trial and so PW 3 was considered as a competent witness in view of the provisions under Section 118 of the Evidence Act and her statements have been recorded as evidence of competent witness. According to him, minimum term of imprisonment has been awarded to the appellants in the impugned judgment and there is no scope to reduce it. 5. Having gone through the materials on record it appears to us that proscutrix (PW 1) is illiterate and she lodged complaint asFIR (exhibit- 7) at Itahar police station on 30.01.2004 at 1:45 p.m. and it was registered starting a case against these appellants under Sections 448 / 376 (2) (g) /506 of the Indian Penal Code (exhibit- 7/1). The police station is 10 kilometers away from the place of occurrence (exhibit- 6). On 30.01.2004 investigating police officer (PW 10) prepared a sketch map (exhibit- 8) of the place of occurrence and seized one old petticoat with seminal stains, one old printed saree, one old and torn blouse and one nylon rope under a seizure list (exhibit- 3) as produced by PW 1. On 08.02.2004 and 31.01.2004 two appellants Saiful Sk @ Saifuddin and Kasim Mahammad respectively were clinically examined by PW 4 as per reports [exhibits- 1 and 1 (1)] and on 331.01.2004 the PW 1 was medically examined by PW 5 as per report (exhibit-2). On 05.02.2004 the statement of victim's minor daughter (PW 3) was recorded and on 12.02.2004 statement of PW 1 was recorded by learned Judicial Magistrate under Section 164 of the Code of Criminal Procedure (exhibits 9/1 and 9 respectively). Seized wearing apparels of PW 1 were examined in Regional Forensic Science Laboratory as per report (exhibit- 5 with copy as exhibit- 5/1). After completion of investigation PW 10 submitted charge- sheet on 30.06.2004 against all the three appellants showing the appellant Sukum Ali as absconder. Thereafter, on 04.09.2004 Sukum Ali surrendered in Court. He was not examined by any doctor. He also did not deny his capability for sexual intercourse. After commitment of the case the trial Court framed charges under Section 448 / 376 (2) (g)/506 of the Indian Penal Code and the case was tried. 6. Determining questions 1. Is the PW 1 a reliable witness? 2. Is the PW 3 a competent witness? 3. Is there major contradiction in the totality of prosecution evidence? 4. Does the defence of appellants inspire confidence to cast doubt against prosecution case? 5. Is there inordinate delay in lodging FIR without satisfactory explanation? 6. Is the alleged place of occurrence identifiable? 7. Is the impugned judgment liable to be set aside or modified? DECISION 1.Is the PW 1 a reliable witness? - this is a case with allegation of sexual assault on PW 1 by three appellants in the house of PW 1 where PW 1 was sleeping in the midnight with her three children including PW 3 who is eldest child of PW 1 and was 9 years old at the time of the occurrence which took place on 29.01.2004/30.01.2004. It is general presumption that a woman ordinarily does not expose herself in society to shoulder a stigma of rape victim falsely unless there is strong special reason. Still in a criminal trial it is a presumption which is far away from proof beyond reasonable doubt. Such presumption does not exonerate the prosecution from discharging its burden of proof. However, such presumption carries much weight when the victim herself gives evidence in Court facing cross-examination in support of the allegation. On that score a criminal trial for charge of rape/gang rape or like nature is to some extent different from trial with charge of other penal offences specially because possibility of corroboration by an independent witness to a victim relating to the actual incident of rape/gang rape is remote and normally a woman may not say in witness box taking oath in presence of accused in a Court of law that she was ravished by accused. We like to consider the exhibits 7, 6, 9 and deposition of PW 1 simultaneously along with the established circumstances to arrive at our decision on this question. It reveals from exhibit- 7 (written complaint of PW 1) that the prosecutrix is an illiterate married woman aged about 25 years having three children aged 9 years, 7 years and 3 years. In the fateful night her husband was away from house for his business. PW 1 and her three children were sleeping in their room. In the midnight she heard sound of knocking the door of the room and she asked who was there. Then three appellants entered the room, frightened PW 1 with dire consequence, tied mouth of the PW 1 with cloth and took her to the corner of the room. PW 1 identified the appellants who committed rape on her one after another. Her children woke up and witnessed the incident. After departure of appellants PW 1 and her children raised hue and cry when neighbours arrived to whom PW 1 narrated the incident stating that the appellants tied her hands by rope, threatened her with dire consequence and raped her consecutively. Exhibit- 7 is the first official record of version of PW 1 about occurrence. As per exhibit- 7/1 and 6 this complaint was submitted in Itahar police station on 30.01.2004 at 01:45 p.m. Exhibit- 6 speaks that the distance between the place of occurrence and police station is 10 k.m. On 12.02.2004 PW 1 narrated the incidents before learned Magistrate as appears in exhibit- 9. At that time she gave a vivid description before the learned Magistrate (Lady) as to how the appellants tied her with a rope, laid her on the floor, gagged her with cloth, threatened her with dire consequence and committed sexual intercourse on her one after another. Said statements do not appear to us as contradictory to exhibit 7. The only difference as appears is that in exhibit 7 she stated that she narrated the incident before villagers in the fateful night but in exhibit 9 she stated that in the following morning she narrated the incident to villagers. This difference does not appear to us major contradiction. In exhibit- 9 she added that on the following morning at about 10:00 a.m. her husband (PW 2) returned home and learnt about the incident and then complaint was lodged at police station. She also stated that she was taken to hospital and was given medicine. Deposition of prosecutrix (PW 1) was recorded on 5th August, 2006. In her examination-in-chief PW 1 stated on oath the same version in substance which she made in exhibits 7 and 9. She clarified that the miscreants entered into her bed room breaking the fenced wall between their room and cowshed. We can understand from exhibit- 8 that the cowshed in the house of PW 1 is at adjacent south of their bed room and thus possibility of entering into the bed room through the cowshed cannot be ruled out. Her such clarification cannot be treated as contradiction or improvement of her earlier statements. Moreover, the PW 1 has made the picture almost live during her cross-examination about the existence of their fenced bed room and open cowshed. Her explanation about identification of the appellants in torch light and hearing voice of the miscreants does not appear to us improbable or an embellishment. During cross-examination PW 1 stated nothing to disbelieve her examination-in-chief which is corroborated by exhibits 7 and 9. Omnibus suggestion was given to her during cross-examination that out of enmity against the accused persons she initiated the case. Said suggestion was denied by her. No particular cause of alleged enmity against three appellants jointly was suggested even. Appellants were given opportunity to establish their defence adducing evidence during trial and further by this Court during pendency of this appeal but they did not adduce any evidence to prove any enmity between PW 1 and accused persons. Unfortunately some questions were put to PW 1 during her cross- examination touching her character which we do not appreciate or approve. The PW 1 is the most competent witness according to the facts and circumstances of this case. Her evidence is so convincing that the same requires no corroboration. The facts stated by her sufficiently explains the delay in lodging FIR. We like to note that occurrence took place in the mid night of 29.01.2004/30.01.2004. Husband of PW 1 was not present in the house in that night and he returned home in the following morning at 10:00 a.m. (exhibit- 9). Thereafter PW 1 narrated the incident to him (PW 2) and then the exhibit- 7 was written by the scribe as described by PW 1. After that they went to police station which is about ten kilometres away from their house and PW 1 lodged the exhibit- 7 there at 1:45 p.m. on 30.01.2004 (exhibit- 6). In our opinion, the portions of evidence of PW 1 which have been claimed by learned counsel for the appellants as contradiction are negligible and almost the same is clarification of earlier statements of PW 1. FIR is not encyclopaedia of the whole prosecution case in the eye of law. Having considered the totality of evidence of PW 1 we find the PW 1 is a reliable and most competent witness. Therefore, this first determining question is accordingly answered in favour of the prosecution case brought by State respondent. 2. Is the PW 3 a competent witness? - Competence of PW 3 has been challenged on behalf of the appellants with arguments that before recording her statement under Section 164 of the Code of Criminal Procedure or her deposition her capacity of understanding questions and ability to give rational answers to the questions was not tested under Section 118 of the Evidence Act although it is undisputed that at the time of recording exhibit 9/1 she was nine years old and at the time of recording her deposition she was eleven years old. Section 118 of the Evidence Act reads as:- "118. Who may testify.- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Explanation.- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them". On plain reading of the Section, it can be safely said that matter of competence of a witness can be considered only by the Court which examines the witness. There is no specifically prescribed rule or procedure in the statute for testing the competence of a witness. However, the Court must be satisfied that the witness is capable to understand the questions put to him/her and can respond the questions giving rational answers. For doing so, it is not essential to ask the witness questions outside subject matter first. If the Court asks questions in connection with determining the subject matter and is satisfied that the witness understands the questions correctly and answers the questions rationally, may the witness be a child or old or sick, recording evidence of the witness by the Court cannot be said as illegal, and evidentiary value of such witness cannot be weighed otherwise than the other witnesses, in accordance with law. Here, admittedly, PW 3 is the eldest child of PW 1. In exhibit- 9/1 learned Magistrate recorded statements of PW 3 in question- answer form. Having gone through the exhibit- 9/1 no prudent man can say that the PW 3 could not understand the questions of learned Magistrate or she had given answers which are not rational. Deposition of PW 3 which was recorded during trial and she was cross-examined at length. Having gone through it not even a single recorded answer of PW 3 appears to us as irrational or given without understanding the question put to her. As such, we are fully satisfied to hold and we hold that PW 3 is not incompetent in view of Section 118 of the Evidence Act. Her oral testimony deserves consideration, of course, with due care and caution for her relationship with prosecutrix and her premature age, so that no prejudice is caused to the accused persons. The question is answered accordingly against the appellants. 3. Is there major contradiction in the totality of prosecution evidence? PW 2 is the husband of the prosecutrix (PW 1) and PW 3 is their daughter. PW 6 is brother of PW 2 and PW 7 is their neighbour. PW 2 did not see the alleged incident but he narrated the incident claiming that he learnt it from his wife, villagers and his children. He is also an illiterate person. The wearing apparels of his wife which she was wearing at the time of occurrence were seized by police (PW 10) in the house of PW 2 by virtue of a seizure list (exhibit- 3) in presence of PW 2 and others. This evidence of PW 2 is corroborated by PW 10 and exhibit- 3. His statements about the happenings during occurrence are considered as hearsay by us although we believe that on his returning home on the following day after the fateful night his wife (PW 1) narrated incidents of the said preceding night which he heard directly from PW 1. His evidence regarding seizure of wearing apparels of PW 1 by police is direct relevant and admissible in the eye of law. During his cross- examination he answered credibly on the questions relating to seizure. PW 2 denied suggestion put during cross-examinations that they had previous enmity and grudge against accused persons. Since the PW 3 is a child witness we like to consider her evidence cautiously. Having gone through the evidence of the investigating police officer (PW 10) and that of PW 3 simultaneously we believe that PW 10 examined PW 3 on 30.1.2004 and recorded her statement under Section 161 of the Code of Criminal Procedure. At that time PW 3 did not state how the miscreants entered into their bed room. She also did not narrate how the accused persons committed misdeeds on her mother in the night of occurrence. She stated before PW 10 that during her mother's (PW 1's) cry they (children of PW 1) woke up and found their mother absent in the bed and was groaning. She also stated that they could not understand what happened and they also started crying. On 5.2.2004 she stated before learned Magistrate about the alleged incidents beginning to end as if she saw the incidents with her own eyes. In our opinion, such improved statements were made after six days of occurrence contradicting her earlier statements which she made before PW 10. If we believe her statements before PW 10 we cannot believe that she witnessed entrance of accused persons in the bed room, frightening PW 1 and commission of sexual intercourse by accused persons on PW 1 but it should be believed that in the night of alleged occurrence an unbecoming incident occurred in their bed room and PW 1 is the victim of such occurrence. On the same analogy we find major contradiction between statement of PW 3 made before PW 10 on 30.01.2004 and her deposition recorded in Court on 08.08.2006. In India 'falsus in uno falsus omnibus' doctrine is not applicable. We believe as per totality of evidence of PW 3 that only it is proved that in the night of 29.01.2004/30.01.2004 an incident took place in their bed room and PW 1 is victim of such incident but we are not satisfied to disbelieve the prosecutrix (PW 1) only because we do not believe the PW 3 as eye witness of the entire occurrence and we believe the PW 3 as a post occurrence witness. PW 4 clinically examined two appellants Saiful Sk. @ Saifuddin and Kasim Md. and prepared the reports exhibits 1 and 1 (a). As per said reports there is nothing suggestive that the patients (said appellants) are incapable of sexual intercourse. In course of recording deposition of PW 4 the word 'nothing' has been omitted relating to clinical examination of Saiful Sk. @ Saifuddin which is an apparent mistake in recording that deposition. Significantly, during cross-examination of PW 4 it was not asserted that Saiful Sk. @ Saifuddin is impotent or recording in exhibit- 1 in support of his capability for sexual intercourse is incorrect. We are not satisfied to give any privilege to the appellants of such omission treating it as major contradiction. PW 5 medically examined PW 1 on 31.01.2004 and prepared report (exhibit- 2). As per exhibit- 2, PW 1 was examined by PW 5 at 12:15 p.m. on 31.01.2004 and PW 5 could not ascertain whether PW 1 was raped or not. PW 5 clarified that if intercourse is done on a mother of children following inducement and intimidation there is no chance of external injury over the concerned part of the body. PW 5 did not find injury inside vagina of PW Rs.1 or mark of violence on her person. During cross-examination PW 5 ruled out that there must be mark of injury in vagina in case of rape or gang rape on the woman under intimidation. As per prosecution case and evidence of PW 5 and exhibit- 2 the PW 1 was examined after about 36 hours of the occurrence. PW 6 is not witness of occurrence but he claimed himself as post occurrence witness and he stated about occurrence in the tune of prosecution case on the basis of his hearing from PW 1. But he witnessed the seizure of wearing apparels of PW 1 and one rope by PW 10 which evidence appears to us convincing. The description of occurrence given by PW 6 appears to us hearsay. Regarding seizure he stood with credibility during cross-examination. PW 7 is an independent witness. He deposed in support of the alleged incident of rape on PW 1 by the three accused appellants but his statements are based on hearsay in the eye of law. PW 8 examined vaginal swab of PW 1 at Raiganj District Hospital but he did not find any spermatozoa in it. Said evidence is corroborated by his report (exhibit- 4). As per evidence of PW 8, the victim was produced for examination after 48 hours of occurrence and generally spermatozoa does not exist in vagina after 48 hours of intercourse. As per evidence of PW 9 and exhibits 5 and 5/1 spermatozoa was detected in the seminal stains on the petticoat which was examined by him. He has stated that one parcel containing one petticoat, one saree and one blouse was received in his office for chemical analysis through S.D.J.M. Raiganj, Uttar Dinajpur in connection with Itahar P.S. Case No. 13/04 dated 30.01.2004. We do not find reason to disbelieve it. Said evidence strongly corroborates the prosecution case. In summing up the totality of the evidence adduced by prosecution during trial we find some contradiction as discussed aforesaid but we are not satisfied to accept the same as major contradiction to disbelieve the veracity of PW 1 or cast any shadow of doubt on her version whose evidence plays pivotal role in the case. Accordingly, this question is answered against the appellants. ;