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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.

CASE NO.:

English: Kankaleshwar temple, Beed, Maharashtr...

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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  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
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  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
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
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
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
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
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
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.

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