& Ors Vs. State of Maharashtra  Insc 757 (7 November 2006)
Singh & Tarun Chatterjee B.P. Singh, J
these appeals by special leave the appellants 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.
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.
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.
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 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.
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 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.
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.
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 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.
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.
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.
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.
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
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.
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.
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
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
explanation given by him for not doing so was that the prosecutrix had herself
asked him not to do so.
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 offence. The said
report had not been placed on record and was not produced at the trial.
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.
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
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
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.
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.
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.
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 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.
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.
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.
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 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.
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.
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.
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.
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 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
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.
is no explanation as to how it was lodged 4 days later.
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
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.
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.
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.
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.
are cases where much time is consumed in taking the injured to the hospital for
medical aid and, therefore, the witnesses find no 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.
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.
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.
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.
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.