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CASE NO.:

Appeal (crl.) 1156-1158 of 2005

PETITIONER:

Ramdas and others

RESPONDENT:

State of Maharashtra

DATE OF JUDGMENT: 07/11/2006

BENCH:

B.P. SINGH & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

B.P. Singh, J

In these appeals by special leave the appellants \026 Ramdas,

Ashok and Madhukar have challenged their conviction under

Section 376 read with Section 34 IPC and Section 3(2)(v) of the

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Act, 1989. They were tried by the VIth Additional Sessions Judge,

Beed in Special Case No. 69 of 1996 charged of having committed

the aforesaid offences. The trial court by its judgment and order of

July 30, 1998 found them guilty of the aforesaid offences and

sentenced them to undergo imprisonment for life under Section

376/34 IPC but passed no separate sentence under Scheduled Caste

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On

appeal, the High Court by its impugned judgment and order of July

1, 2005 in Criminal Appeal Nos. 225, 229 and 251 of 1998

dismissed the appeals preferred by the appellants.

The occurrence giving rise to the present appeals is said to

have occurred on January 10, 1996 at about 10.00 p.m. The case

of the prosecutrix, as deposed to by her, is that she belongs to

Pardhi caste. She was married 3 years earlier and was residing at

her matrimonial home at village Ekurka. Her parents and other

family members resided at village Kewad. She had come to

village Kewad on January 9, 1996, a day previous to the date of

occurrence. Her parents and brothers had gone to work in

Jagdamba Sugar Factory in the Ahemadnagar district. She had

come to her village Kewad to help them in harvesting of the pulse

crop grown by her parents. She came to the village Kewad on

Saturday and the incident took place on Sunday, the very next day.

In village Kewad, she was residing in the house of her father

alongwith her niece Sharda, aged about 10 years, who was the

daughter of her sister Sindhubai, PW-3. On the date of the

occurrence, after working in the fields, she had returned to her

home and taken her dinner. At about 10.00 p.m. appellant Ramdas

came to her house and asked her as to what she was doing. She

replied that she had just taken her dinner whereupon appellant

Ramdas asked her to come out with him. When she refused to do

so, he dragged her outside the house and whistled twice. The

remaining two appellants came on signal being given by him and

they all dragged her to a distance of about 500 feet from her house.

When she was being dragged out of her house, she raised alarm but

no one came to her rescue. She was thereafter rapped by all the

three appellants who threatened her not to report the matter to

anyone otherwise she will be killed. After the occurrence she

returned home at about midnight and then went to sleep. She

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admitted that her uncles were living in the adjacent houses but one

of them was not in the village on the night of occurrence, while the

other uncle Fakkad (PW-5) living in the adjacent house did not

come to her rescue as he had been threatened by appellant Ramdas

before she was dragged outside the house. Since it was midnight,

she did not report the matter to anyone. Her uncle and aunt already

knew about the incident.

Next morning she went to her sister, PW-3 at village

Kelgaon who advised her to lodge a report. She along with PW-3

and two others, namely \026 Yamunabai and Subbabai went to police

station Kaij and reported the matter. However, the information

given by her was neither recorded nor any action taken. She

thereafter returned to village Kelgaon and on the next day she went

to Jagdamba Sugar Factory and narrated the incident to her

parents. On the day following, she came to Beed and narrated the

incident to the Superintendent of Police. Thereafter she went to

police station Beed in the night at about 10.00 p.m. along with her

parents and lodged the report about the incident. She was then sent

to the Civil Hospital, Beed for examination. The report lodged by

her was shown to the witness who was examined as PW-2 and she

admitted that the same bore her thumb mark. The contents of the

report was read over to her and she certified them to be correct.

The report was marked as Ext. 22. It is worth noticing at this stage

that the report was lodged on January 18, 1996 i.e. 8 days after the

occurrence.

A few facts stated in the first information report which were

deviated from in her deposition may be noticed. In the first

information report she had stated that she had come to village

Kewad on January 6, 1996 i.e. 4 days before the occurrence

whereas in the course of her deposition, she stated that she had

come to the village only a day before the incident namely, on

Saturday and the occurrence took place on Sunday. Another

significant fact stated by her in her report was that when on the

first occasion she went to the police station, the police did not

record her statement and asked them to come on the following

morning. They, therefore, went to village Salegaon, the village of

her mother's sister, namely Begambai. The incident of rape was

narrated to Begambai. On the following day i.e. on January 12,

1996 her sister Sindhubai, PW-3, reported the incident to her

father-in-law and on coming to know that such an occurrence had

taken place, her father-in-law came to Salegaon. At about 11.00

a.m. she along with her father-in-law and sister Sindhubai came to

the police station and narrated the incident to the Police Sub

Inspector. She did not know what had been written but her thumb

impression was taken. Since she was not referred to the hospital

for medical examination and no attempt was made to arrest the

accused, she on 17th January, 1996 went to her father, who was

working in Jagdamba Sugar Factory and narrated the incident to

him. In the course of her deposition, the prosecutrix (PW-2) has

not stated these facts. Nor has the prosecution examined her

father-in-law, Smt. Yanuna Bai, Subbabai and Begambai, who

were said to have accompanied her to the police station or to whom

the matter was reported. What is worth noticing is that, according

to the first information report, she along with her father-in-law and

others had gone to the police station and had lodged a report. The

exact date is not mentioned, but from the narration of facts it

appears that such a report may have been lodged either on January

13, 1996 or January 14, 1996. According to the FIR the earlier

report was recorded and she had put her thumb mark on it. The

said report has not been produced though PSI Laxman, who was

examined as PW-6, has admitted in the course of his deposition

that earlier a report had been lodged by the prosecutrix but the

same related to a non-cognizable offence. That report was neither

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produced nor exhibited at the trial. The factual statements which

find place in the first information report but not deposed to by the

informant or any other witness cannot be treated as evidence in the

case.

From the suggestions put to the prosecutrix, the defence of

the appellants appeared to be that they had been falsely implicated

on account of enmity and bad blood between the father of the

prosecutrix and the appellants. In her cross-examination the

prosecutrix admitted that adjoining the field of her father is the

field of appellants Ramdas and Ashok but it was not correct to

suggest that there used to be frequent quarrels between his father

and the aforesaid appellants. She did not know whether any

litigation was pending in respect of the land between her father and

accused No.3. She denied the suggestion that she had got a false

report lodged against the appellants in collusion with her father.

She also denied the suggestion that she was motivated to make

such allegations since the Pardhi community has an Association

which gives a sum of Rs.40,000/- to the victims of such offences.

She denied the suggestion that to teach the appellants a lesson, who

had been obstructing the possession of her father, a false report

was made. She also stated that the police at Kaij police station had

obtained her thumb impression on paper when she went to report

about the incident. She also stated that she had gone to Kaij police

station twice before lodging the first information report.

According to the first information report, the prosecutrix had gone

to her father on January 17, 1996 and had gone to Beed on January

18, 1996 to meet the Superintendent of Police.

Sindhubai, the elder sister of the prosecutrix was examined

as PW-3. She stated that prosecutrix had come to her in the

morning and narrated the incident to her. They thereafter went to

police station Kaij but no case was registered by the police nor was

the statement of the prosecutrix recorded by them. She also denied

that the appellants have been falsely implicated.

PW-5, Fakkad, uncle of the prosecutrix living in the adjacent

house in the village had a somewhat different version to narrate

regarding the fact that preceded the incident. He stated that in the

evening his niece (Sharda aged about 10 years) came running to

him and complained that someone was concealing himself near

their house. He immediately went to verify the fact reported to

him but despite search he found no one concealing himself nearby.

When he was returning to his house he saw the appellant Ramdas

standing behind his house. When he enquired of him as to what he

was doing there, he gave no reply but went to house of the

prosecutrix and in abusive language asked her to come out.

Ramdas dragged her out of the house and took her towards the

Pimpri field. He attempted to rescue the prosecutrix but he was

threatened by the appellant. He also stated that appellant Ramdas

gave two whistles and two persons came towards him but he had

not seen them. Next morning the prosecutrix came to him and

narrated to him the incident. He did not enquire of the prosecutrix

as to how many accused were involved, nor did she tell him how

many persons were involved. This witness further stated that on

the fourth day, he went with the prosecutrix to Police Station Kaij

to lodge the report. He also stated that he had not informed either

the police or the sarpanch of the village regarding the occurrence.

The explanation given by him for not doing so was that the

prosecutrix had herself asked him not to do so.

PSI Laxman Borade was examined as PW-6. He is the

police officer who recorded the first information report at Police

Station Kaij when the report from Beed was sent to that police

station. He further admitted that earlier a report had been lodged

by the prosecutrix, PW-2 but that related to a non-cognizable

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offence. The said report had not been placed on record and was

not produced at the trial.

PW-4, the Medical Officer who examined the prosecutrix on

the 18th January, 1996 gave her opinion on the basis of clinical

findings that there was no evidence of rape.

On the basis of the evidence on record, the trial court, as

earlier noticed, found the appellants guilty of the offences under

Section 376/34 IPC and also under Section 3(2)(v) of the

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Act, 1989. As earlier noticed no separate sentence was passed

under the latter Act. The High Court has dismissed the appeals

preferred by the appellants.

At the outset we may observe that there is no evidence

whatsoever to prove the commission of offence under Section

3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention

of Atrocities) Act, 1989. The mere fact that the victim happened to

be a girl belonging to a scheduled caste does not attract the

provisions of the Act. Apart from the fact that the prosecutrix

belongs to the Pardhi community, there is no other evidence on

record to prove any offence under the said enactment. The High

Court has also not noticed any evidence to support the charge

under the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and was perhaps persuaded to affirm the

conviction on the basis that the prsecutrix belongs to a scheduled

caste community. The conviction of the appellants under Section

3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 must, therefore, be set aside.

It was submitted before us that the case against the

appellants is a false case and they were implicated only to take

revenge since there were disputes between the father of the

prosecutrix on the one hand and the appellants on the other. It was

argued that evidence of prosecutrix, PW-2, and her uncle PW-5 are

not consistent. In any event the evidence of PW-5 must be

discarded as unworthy of belief. Even the prosecturix has not

supported the version given by PW-5. It was also urged before us

that there is considerable delay in the lodging of the first

information report while the earlier report lodged by the

prosecutrix has been withheld from the court. Having regard to the

facts and circumstances of the case the appellants deserve

acquittal.

On the other hand counsel for the State submitted that

though there is a delay in lodging the first information report but

that is of no consequence in cases of this nature and, therefore, that

fact should be kept out of consideration. He submitted that the

evidence of PW-2 is reliable and convincing and the conviction of

the appellants can be based solely on her testimony. He candidly

submitted that the evidence of PW-5 does not inspire confidence.

However, there was no ground to interfere with the judgment and

order of the High Court convicting the accused of the offence

punishable under Section 376/34 IPC.

The High Court while considering the question of delay

observed that there was a delay of about 8 days in lodging the

report for which the prosecutrix had herself offered an explanation

which was corroborated by the recitals in the first information

report Ext.22. The High Court placed reliance on the deposition of

the prosecutrix that she had gone to the police station on the very

next day but no case was recorded on the basis of the information

given to the police. This, according to the High Court, was a

sufficient explanation. The High Court noticed that though it

appeared from her deposition that she had approached the

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Superintendent of Police within 2-3 days of the incident, which

was factually incorrect since the report was lodged on January 18,

1996, that was only a slight discrepancy which did not in any way

detract from her statement that she had immediately gone to the

concerned police station but the police refused to take down her

report. The High Court has also noticed the evidence of PW-6 PSI

Laxman Borade who admitted in his cross-examination that the

victim had come to the police station to lodge a report and that a

non-cognizable offence had been registered on the basis of her

statement. The High Court was of the view that this corroborated

the statement of the prosecutrix, PW-2 regarding her coming to the

police station, though no offence was registered. Surprisingly the

High Court observed that PW-6 PSI Laxman Borade was not

cross-examined on the question as to whether the complaint of the

prosecutrix was reduced into writing. It went on to observe that

the police for some inexplicable reason, which demonstrated their

insensitive approach, had declined to take any action. The High

Court, therefore, concluded that the delay, if any, in lodging the

report was satisfactorily explained. It further held that assuming

that there was some dispute between the father of the appellant and

the family of the appellants, that was hardly a ground for inferring

that on account of strained relations, the appellants have been

falsely implicated. The High Court also noticed the slight variance

in the testimony of PW-2, prosecutrix and her uncle PW-5,

Fakkad. It concluded that PW-5 had given an exaggerated version

and the variance was not of such a magnitude as to discredit the

evidence of the prosecutrix. The testimony of PW-2 inspired

confidence and was worthy of credence. The High Court

confirmed the conviction of the appellants on the basis of her

testimony.

Learned counsel for the appellants submitted before us that

PW-2, prosecutrix cannot be relied upon. Her deposition in court

is at variance with the report lodged by her, though belatedly. PW-

5 is a thoroughly unreliable witness. There was considerable delay

in lodging the first information report for which no explanation has

been furnished by the prosecution. The conduct of the witnesses in

keeping quiet and not reporting the matter immediately, atleast to

the villagers, is most unnatural. Though a report was lodged at the

police station regarding a non cognizable offence, that report was

not produced before the court. In the first information report there

was a reference to this report but in her deposition before the court,

PW-2 has completely concealed this fact from the court. These

features of the case establish that the case of the prosecution is not

true and in all probability at the instance of her father, and taking

advantage of some other minor incident, the appellants have been

falsely implicated on account of enmity.

On the other hand learned counsel for the State submitted

that the evidence of PW-2 can be implicitly relied upon. Delay in

lodging the report in such a case is immaterial. The improvements

made by the prosecutrix were not such as to discredit her

testimony. He, therefore, supported the conclusion reached by the

High Court and sought dismissal of the appeals.

Before dealing with the evidence of the prosecutrix and the

question of delay in lodging the first information report, we shall

first consider the evidence of PW-5. In his deposition before the

court this witness stated that on the earlier night sometime before

the occurrence, Sharda, the niece of the prosecutrix came running

to him and told him that there was some one concealing himself

behind their house. He went in search of that person but he found

no one there. While returning he saw accused No.1 Ramdas

standing behind his house, who on being questioned did not reply

but went to the house of the prosecutrix and using abusive

language caught hold of her and took her to Pimpri field. He

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attempted to rescue the prosecutrix but he was threatened by the

accused. He further stated that two more persons had joined

appellant Ramdas after he signalled to them by whistling twice, but

he did not see them. He also asserted that on the fourth day after

the occurrence he had accompanied the prosecutrix to Kaij police

station for lodging the report. In the early hours of the morning the

prosecutrix had come to him and stold him that she had been raped

by appellant Ramdas. He did not enquire as to how many persons

were involved nor did she tell him about the number of persons

who raped her.

It is worth noticing that the prosecutrix has not even referred

to the presence of PW-5 in her first information report nor about

his attempt to rescue her. The only reference to him is to the effect

that he had earlier been threatened by appellant Ramdas. Even in

the course of her deposition, PW-2, prosecutrix, did not say that

her uncle PW-5 had intervened. The prosecutrix has also not

stated that 3 or 4 days later PW-5 had accompanied her to the

police station. It is not even the prosecution case that minor

Sharda had gone to inform him earlier in the night about some one

concealing himself behind their house. Thus almost every factual

statement made by this witness appears to be false. Moreover his

conduct was rather unnatural. Assuming that he had been

threatened by appellant Ramdas, it is too much to believe that after

the appellants took away the prosecutrix from her house, he could

not atleast inform the villagers and seek their help. In fact he does

not claim to have even narrated the incident to anyone and kept

himself confined in his house. Though he claims that on the

following morning the prosecutrix came and informed him about

the occurrence, the prosecutrix herself in her evidence has not said

so. He gave a rather unconvincing explanation as to why he did

not inform anyone about the occurrence. His explanation was that

he did not do so because the prosecutrix had asked him not to do

so.

We have no doubt that PW-5 is a thoroughly discredited

witness and cannot be relied upon. He appears to be a wholly

untruthful witness and was introduced by the prosecution only to

buttress the case of the prosecution. We, therefore, reject his

evidence outright.

On the question of delay in lodging the first information

report, the evidence is equally unconvincing. The occurrence took

place in the night intervening 9th and 10th January, 1996. The first

information report Ext. 22 was recorded on the 18th of January,

1996. There is apparently a delay of about 8 days in lodging the

first information report. In the first information report a somewhat

different version has been given with a view to explain the delay.

It was stated that when on the 11th of January, 1996 the police did

not register a case, and the father-in-law of the prosecutrix came to

know about the fact, he accompanied the prosecutrix and went to

the police station and lodged a report. However, since she was not

sent for medical examination and the police did not take any action

to arrest the accused, she went to her father, who was working in

the Jagdamba Sugar Factory on 17th January, 1996. On the next

day i.e. on 18th January, 1996 they came to Beed and lodged the

complaint with the Superintendent of Police and thereafter, on the

information given by her, a case was registered against the

appellants. This story has been given a go bye by the prosecutrix

in the course of her deposition. Her evidence before the court was

to the effect that she went to her sister Sindhubai in the morning

and reported the matter to her. This happened on 11th January,

1996. She alongwith Sindhubai, PW-3, went to police station Kaij

but the police did not register a case on the basis of the information

given by her. On the next day she went to her father, who was

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then at the Jagdamba Sugar Factory in Ahmadnagar District. She

narrated the entire incident to him on that day. On the next day

they went to Beed and complained to the Superintendent of Police

whereafter they were directed to go to the police station and lodge

the report which they did on 18th January, 1996. If her evidence is

carefully analysed the following facts would emerge. The first

attempt to lodge the report was made on the 11th January, 1996.

Thereafter the prosecutrix went to her father-in-law on the 12th of

January, 1996. On the next day i.e. on 13th January, 1996 they

went to the Superintendent of Police at Beed and made a

complaint. Thereafter they came to police station Kaij on the same

day and lodged the report. If we accept the statement of PW-2, the

report should have been lodged on 13th or 14th January, 1996.

There is no explanation as to how it was lodged 4 days later.

Another aspect of the matter which deserves notice is the

fact that PW-6 Laxman Borade PSI Kaij admitted in his deposition

that a report had in fact been lodged by the prosecutrix but that

related to a non cognizable offence. No doubt the prosecution has

not placed before the court the aforesaid report which perhaps

contained the earliest version of the occurrence. Though in her

first information report the prosecutrix admitted that on the second

attempt when she went with her father-in-law to lodge the report, a

report was recorded and she gave her thumb impression on the said

report. In the course of her deposition, however, she has omitted

these facts. However, we have the evidence of PW-6 to the effect

that an earlier report was in fact recorded at the police station on

the information given by the prosecutrix but that related to a non

cognizable offence.

It would thus appear that there is no reasonable explanation

forthcoming from the prosecution explaining the delay in lodging

the report with the police, which was in fact lodged 8 days later.

Though in her first information report, the prosecutrix mentioned

about her earlier report being recorded, she did not say so in her

deposition, but that fact has come in the deposition of PW-6 PSI

Laxman Borade.

It is no doubt true that the conviction in a case of rape can be

based solely on the testimony of the prosecutrix, but that can be

done in a case where the court is convinced about the truthfulness

of the prosecutrix and there exist no circumstances which cast a

shadow of doubt over her veracity. If the evidence of the

prosecutrix is of such quality that may be sufficient to sustain an

order of conviction solely on the basis of her testimony. In the

instant case we do not find her evidence to be of such quality.

Counsel for the State submitted that the delay in lodging the

first information report in such cases is immaterial. The

proposition is too broadly stated to merit acceptance. It is no doubt

true that mere delay in lodging the first information report is not

necessarily fatal to the case of the prosecution. However, the fact

that the report was lodged belatedly is a relevant fact of which the

court must take notice. This fact has to be considered in the light

of other facts and circumstances of the case, and in a given case the

court may be satisfied that the delay in lodging the report has been

sufficiently explained. In the light of the totality of the evidence,

the court of fact has to consider whether the delay in lodging the

report adversely affects the case of the prosecution. That is a

matter of appreciation of evidence. There may be cases where

there is direct evidence to explain the delay. Even in the absence

of direct explanation there may be circumstances appearing on

record which provide a reasonable explanation for the delay.

There are cases where much time is consumed in taking the injured

to the hospital for medical aid and, therefore, the witnesses find no

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time to lodge the report promptly. There may also be cases where

on account of fear and threats, witnesses may avoid going to the

police station immediately. The time of occurrence, the distance to

the police station, mode of conveyance available, are all factors

which have a bearing on the question of delay in lodging of the

report. It is also possible to conceive of cases where the victim and

the members of his or her family belong to such a strata of society

that they may not even be aware of their right to report the matter

to the police and seek legal action, nor was any such advice

available to them. In the case of sexual offences there is another

consideration which may weigh in the mind of the court i.e. the

initial hesitation of the victim to report the matter to the police

which may affect her family life and family's reputation. Very

often in such cases only after considerable persuasion the

prosecutrix may be persuaded to disclose the true facts. There are

also cases where the victim may choose to suffer the ignominy

rather than to disclose the true facts which may cast a stigma on

her for the rest of her life. These are case where the initial

hesitation of the prosecutrix to disclose the true facts may provide

a good explanation for the delay in lodging the report. In the

ultimate analysis, what is the effect of delay in lodging the report

with the police is a matter of appreciation of evidence, and the

court must consider the delay in the background of the facts and

circumstances of each case. Different cases have different facts

and it is the totality of evidence and the impact that it has on the

mind of the court that is important. No strait jacket formula can be

evolved in such matters, and each case must rest on its own facts.

It is settled law that however similar the circumstances, facts in

one case cannot be used as a precedent to determine the conclusion

on the facts in another. (See AIR 1956 SC 216 : Pandurang and

others vs. State of Hyderabad). Thus mere delay in lodging of

the report may not by itself be fatal to the case of the prosecution,

but the delay has to be considered in the background of the facts

and circumstances in each case and is a matter of appreciation of

evidence by the court of fact.

In the instant case there are two eye witnesses who have

been examined to prove the case of the prosecution. We have

rejected outright the evidence of PW-5. We have also critically

scrutinized the evidence of the prosecutrix, PW-2. She does not

appear to us to be a witness of sterling quality on whose sole

testimony a conviction can be sustained. She has tried to conceal

facts from the court which were relevant by not deposing about the

earlier first information report lodged by her, which is proved to

have been recorded at the police station. She has deviated from the

case narrated in the first information report solely with a view to

avoid the burden of explaining for the earlier report made by her

relating to a non cognizable offence. Her evidence on the question

of delay in lodging the report is unsatisfactory and if her deposition

is taken as it is, the inordinate delay in lodging the report remains

unexplained. Considered in the light of an earlier report made by

her in relation to a non cognizable offence, the second report

lodged by her after a few days raises suspicion as to its

truthfulness.

Having carefully scrutinized the evidence on record, we are

not satisfied that the prosecution has proved its case beyond

reasonable doubt. We are left with a strong suspicion that the case

put forward by the prosecution may not be true. In any event the

appellants are entitled to the benefit of doubt.

Accordingly we allow these appeals and set aside the

conviction and sentence of the appellants herein and direct that

they be released forthwith, if not required in any other case.