Author: Krishna Agarwal
CASE NO.- Appeal (Crl.) 1156-1158 of 2005
BENCH- B.P. Singh & Tarun Chatterjee
JUDGMENT- B.P. Singh
In the present appeals, the appellants Ramdas, Ashok, and Madhukar have challenged the order by the High Court upholding the order of conviction by the Sessions Court under section 367 read with Section 34 IPC and Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The appellant belongs to the Pardhi Community. She accused the appellants of raping her on the night of 10th January 1996, by forcefully taking her nearly 500 feet away from her father’s home where she was living with her niece who was 10 years of age. Adjacent to her father’s home was her uncles’ home. One of whom was not in the village and the other was before the occurrence of event, already threatened by the appellants, not to interfere. She made various inconsistent remarks in her deposition and in the FIR before the police.
TIMELINE OF EVENTS AND INCONSISTENCIES
As stated in FIR
As stated in Deposition
Came to his father’s house from her matrimonial house on 6th January 1996.
Came to her father’s house one day before the occurrence of event, i.e. on 9th January 1996.
She informed her sister (PW-3) on the next day; Both of them along with two other ladies went to file report in the police station. Report was not filed; PW3 informed about the incident to the father-in-law of the prosecutrix; Three of them i.e. Prosecutrix, PW3, and Father-in-law went to the police station. A written complaint was made on which her thumb impressions were taken, however, no action was taken in furtherance to such complain; Finally, on 17th January, she informed to her father, and on the next day, the report was filled by the superintendent of police, Beed.
Father-in-law of the prosecutrix was nowhere mentioned in the entire deposition; Neither her father-in-law, nor the other two ladies that accompanied the prosecutrix and her sister to file the report were examined by the prosecution; As stated by PW6, the first complained filed by the prosecutrix along with her father-in-law and PW3 was of a non-cognizable offence, copy of which was never produced before the court.
(the above-mentioned facts are only brief set of facts for the understanding of the case. All necessary facts will be introduced as and when required.)
The matter was heard by the Hon’ble Supreme Court in 4 main Issues:
- Whether the conviction under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was legal?
- Whether the statement made by PW-5 i.e. of the uncle of the prosecutrix is truthful and whether it shall be taken into consideration while delivering the judgment?
- Whether the delay in filling the report by the prosecutrix can hamper the case of prosecution?
- Whether the deposition given by the prosecutrix herself is sufficient for conviction of the appellants?
ISSUE 1- Whether the conviction under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was legal?
HELD- The Supreme Court held that apart from the prosecutrix being of the Pardhi community, no other arguments were advanced in this regard. Also, only victim being member of the SC/ST community does not attract punishments under this section and thus the conviction under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside.
ISSUE 2- Whether the statement made by PW-5 i.e. of the uncle of the prosecutrix is truthful and whether it shall be taken into consideration while delivering the judgment?
The uncle of the prosecutrix, namely Fakkad, living in the adjacent house stated in his disposition that on the day of the alleged incident, 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.
HELD- The court observed various inconsistencies between the case of the prosecution and statement made by the PW5. Nowhere, in her statements before court or the police, the prosecutrix stated any act of his uncle trying to save her from the appellants, or that he accompanied her to the police station. Also, the explanation provided by him for not helping the prosecutrix was found too much for the court to believe since even if he was threatened, he could have at least informed the villagers and seek their help. Thus, the court assumed PW5 as thoroughly discredited witness which cannot be relied upon. Court held that he was introduced only to buttress the case of the prosecution, and rejected his evidence outright.
ISSUE 3- Whether the delay in filling the report by the prosecutrix can hamper the case of prosecution?
The defense argued that there is a time gap between the occurrence of alleged act and filing of FIR. The prosecution contested that a meagre delay of eight days cannot be of any relevance in rape cases, and also, it was not the delay on part of the prosecutrix to lodge the complaint rather inefficiency of the Police to file such complain
HELD- The alleged act took place on 10th January 1996; however, the FIR was lodged on 18th January 1996. The prosecutrix in her own statement, and also as per the statement of PW6 i.e. PSI Lakshman Borde admitted in their deposition that a report had been lodged by the prosecutrix but that was related to a non-cognizable offence and the copy of that report was not filed by the prosecution which raises suspicion in the story of the prosecution. The court also held that the reasons so provided by the prosecution for delay of the filling of the witness is not of sufficient cause, so as to not to be taken into consideration.
The court though not providing an exhaustive list, provided some of the instances where delay in filling complaint cannot be taken as otherwise to the case of prosecution. “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.”
ISSUE 4- Whether the deposition given by the prosecutrix herself is sufficient for conviction of the appellants?
As already mentioned in the Table above, the court found various inconsistencies in the story of the prosecution as told to the police during the FIR and the one that she deposed before the court.
HELD- The court while scrutinizing the evidence given by the prosecutrix held that. “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.”
JUDGMENT- The appeal was allowed and the convictions were set aside.
About the Author: Krishna is a 2015-20 law student at ILS Law College, Pune
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