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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.