Judgment ( 1 ) APPELLANT has been convicted for offences under section 376 (2) (b) and 376 (2) (h) of IPC and Section 3 (l) (xii) of schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. ( 2 ) PROCEEDINGS commenced with a report lodged by one H. M. Meshram, Sarpanch of Gram Panchayat, Malpuri on 17-7-1990 where he informed that on 29-6-1990 at about 12 o'clock in the noon Forest Guard Manik dhapade committed rape on Vimalbai w/o. Sharad Ghasale in the Malpuri beat of forest. It is also stated that Complainant Vimlabai was out of station who returned on 17-7-90 and therefore, on the version of Vimlabai said report was submitted. ( 3 ) BASED on this report, F. I. R. was recorded on 17-7-1990 at 22. 45 hours when vimalbai was present in the Police Station. Her oral report was recorded stating that :- she was a daily-wager amongst 5 women working in the nursery. Mr. Dhapade, forest Guard was supervising their work. When she was carrying sapplings from Malpuri nursery to plantation site, the other women workers had gone ahead while she lagged behind where the accused stopped her on the way and requested for sexual intercourse. On her refusal, he took her away from the place to the side of road, removed her Saree and committed sexual intercourse with her. Since due to rape, there was oozing of blood from her private part, she then washed her Saree. She claims that she has reported the incident to Khelanbai and Parbatabai and went to her house. She claimed that she did not report the incident to her father-in-law and husband due to fear of defamation. Thereafter she went to her parents' house accompanying two persons and she did not reveal the incident to any one. Later on the incident was discussed amongst the villagers and ultimately she reported the matter to her in-laws and husband, therefore, she had gone to police station and lodged the report. ( 4 ) THE complainant was referred for medical-examination. The medical report (Exh. 32) indicates :- "no definite opinion about the occurrence of rape can be given as lady is married and the incident has taken place on 29-6-90 i. e. 19 days back. ( 4 ) THE complainant was referred for medical-examination. The medical report (Exh. 32) indicates :- "no definite opinion about the occurrence of rape can be given as lady is married and the incident has taken place on 29-6-90 i. e. 19 days back. " ( 5 ) THE trial commenced and prosecution recorded evidence of complainant pw-1 Vimalbai, PW-2 Tuljabai, PW-3 khelanbai, PW-4 Kuwarlal as Panch witness, pw-5 Hemraj - the Sarpanch, PW-7 Sevakram dodkuji Thaokar - Investigation Officer, PW-8 shitalprasad - the P. S. O. who had recorded the statements. ( 6 ) MEDICAL opinion dose not support positive case of rape, and hence it is of no use. Witness Khelanbai is the only person to whom the complainant Vimalbai has revealed the incident. Though Tuljabai PW-2 has been examined, this witness does not prove the case of prosecution. Another person Parbatabai whose name has been written in F. I. R. is not examined. ( 7 ) THE entire case of prosecution, therefore, rests upon the testimony of the complainant-Vimalbai. It is thus necessary to examine and appreciate the evidence of the complainant. What she says relating to the things prior and after the incident is seen from her testimony (Exh. 29) and is quoted for ready reference :- "we were planting trees. We ladies were supplying plants from nursery. I know sakun. She was on work. I Know accused no. 4. He a labourer. Accused No. 1 was present at the site of plantation. Accused no. 2 was present there. We all labourers were taking sapplings towards plantation site, accused no. 1 said that we all should go to nursery. We all went to nursery. It was 1 p. m. All other women were ahead. I was lagging behind. Accused was there. He dragged me. He took me in the trees. He raped me. There was nobody near to me. I shouted for help. I do not consented for rape. He had removed my saree while committing rape. Only accused no. l committed rape. Accused Nos. 2 to 4 were not there. I was refusing to allow accused to commit intercourse, but he committed rape by force. I could not do anything against him. Accused after committing rape went towards plantation site. Accused was insisting to commit intercourse. (As the prosecutrix is a tribal woman therefore the court itself has put questions and recorded the statement ). I was refusing to allow accused to commit intercourse, but he committed rape by force. I could not do anything against him. Accused after committing rape went towards plantation site. Accused was insisting to commit intercourse. (As the prosecutrix is a tribal woman therefore the court itself has put questions and recorded the statement ). I had told Parbatabai and other woman about rape on me and I told them that I am going to home. Then I went to my home. That time I was already married. I did not tell this incident to anyone in my house. Due to fear of defamation I did not tell the incident to anyone. I also did not tell because my family would raise hue and cry. Thereafter for two days I did not go for work. On third day my uncle had come form Borgaon. I went with him. I had not told this incident to anyone in my parental house. Nobody had restricted me from disclosing the incident. After 15 days my father-in-law visited Borgaon. I do not know who had told him. But he had come to know about incident. My father-in-law came and went alone without taking me. Thereafter my uncle took me to Ramatola. When I went to Ramatola, my father-in- law called meeting of Panchas. My father- in-law had spread news about accused No. 1 committing rape on me. Meeting was called by him for prosecuting accused no. 1. My uncle was present. The panchas had inquired me as what had happened. I do not know names of panchas. I had told panchas that accused No. 1 had committed rape on me. Panchas wrote the report. I was taken to police station Goregaon. Police recorded my statement. I gave report to the police. Exh. 30 bears my signature. Contents of Exh. 30 are correct. I had bleeding from my vagina. My saree had stains of the blood. F. I. R. is at Exh. 31. 2. After this incident my parent-in-law did not allow to reside with them. My husband has deserted me. That time my marriage was two years old. Accused no. 1 was registering our attendance. Accused no. 1 was responsible for work which being done in the nursery. I am from Halbi Scheduled tribe. Accused No. 1 is non-scheduled tribe. I had worked for about there weeks. My husband has deserted me. That time my marriage was two years old. Accused no. 1 was registering our attendance. Accused no. 1 was responsible for work which being done in the nursery. I am from Halbi Scheduled tribe. Accused No. 1 is non-scheduled tribe. I had worked for about there weeks. I received wages of one week, and wages of two weeks were in arrears. My parent-in-law were knowing about my wages, witness is not able to tell why she kept quite and did not protest the accused while committing rape ). I wanted it to keep secret and I did not want to spread it. I was referred to medical-officer. Police had seized my clothes. " ( 8 ) IN the cross-examination what she reveals is as follows :- "about 40 to 50 labourers were there in the plantation site. We supplied the new saplings for the labourers for replantation. It was raining and I had a plastic paper with me. When there was rain I was standing under Mohwa tree alongwith other women labourers. That day I started menstruation and I was not well. I had told the lady workers that I will go home because of my ill health. After going to home I took bath and told my mother-in-law about my menstruation cycle. On next day my uncle had come, with whom I went to Borgaon. I was taken to hospital by my uncle at kurhadi. At Borgaon also I had gone to plantation of paddy. Ques. After you and your uncle went to Ramatola. your husband told you that you will have to lodge report against accused no. 1. Ans. Yes. I had told my husband that when accused No. l did not do anything why I should file a report. They told me that if I will not lodge the report they will not keep me. Thereafter, panchas were called. Panchas had not made any querry with me. They took me to the police station to file report. Police first made inquiry with my husband and thereafter inquired with me. As per statement of my husband I gave my statement to the police. Accused no. 1 did not commit rape on me. To Court: q.- Your have told to the Court about rape by accused No. 1 was it a false statement? a.- I stated as per story narrated by my parents-in-law. As per statement of my husband I gave my statement to the police. Accused no. 1 did not commit rape on me. To Court: q.- Your have told to the Court about rape by accused No. 1 was it a false statement? a.- I stated as per story narrated by my parents-in-law. When court querries further, witness says that she was raped. As accused had forcibly committed rape on me, my in-laws forced me to give report. Police has filed true case. 4.- Further cross-exam, by Shri. Bhajipale, adv. for accused. P.- Your husband and in law had caused to file a report against accused no. 1 ? p.- Accused No. 1 had not committed rape on you ? a.- Yes. I would not have gone to report the matter to the police had my husband and father- in-law not insisted. I would not have told the incident to any also. I had not disclosed incident to Parbatabai. Tuljabai and khelanbai. It is true that my father-in-law and husband wanted some reason to desert me and therefore they caused me to file false report against accused. ( 9 ) THUS with the aforesaid evidence, the learned Sessions Judge was dealing with the case. The learned Sessions Judge after examining the entire evidence and submissions of the accused observed and held as follows :- "9. Considering the above version of P. W. Vimlabai, I find that her behaviour cannot be said to be unnatural. We have been experiencing that when woman shouts about her modesty then we cast asperasion on her character and when she keeps shut her mouth we go on casting allegations on her about her loose character. Character is not something which can be assessed in such a simplified fashion. It is to be borne in mind that many of rape cases are done in the day of light only because woman is not looked upon honourably. It is not at all very unnatural when P. W. Imalabai had decided not to open her mouth and not to risk her married life and reputation of her family. That does not, however, make her a woman of non-character. It is natural instict fistly to save own married life and to be close with the husband with whom she had been recently tied. 10. . . . . . . That does not, however, make her a woman of non-character. It is natural instict fistly to save own married life and to be close with the husband with whom she had been recently tied. 10. . . . . . . This version of the prosecutrix is of the same category as pointed out earlier that since she does not want to risk her married life, therefore, she does not want to open her mouth. But, her version does not show that she was happy with the incident or the incident had taken place with her consent or with her participation. Therefore, even if the prosecutrix does not want to open her mouth still her attitude discloses that how painful the incident was for her mentally and physically. " ( 10 ) THE entires judgment is based on the conclusion as if pre-reached by the Judge where the learned Sessions Judge feels that it was a clear case of rape, however, that the prosecutrix did not want to reveal it. In fact, if entire tone of cross- examination of the prosecutrix is seen, it is a clear case where she admitted that there was no rape done on her but she lodged the complaint under the threats of her in-laws. It is also pertinent to note that lodging the report commenced from lodging the report by sarpanch. The learned Sessions Judge has instead of giving weightage to the lacunae in favour of the accused, has interpreted all the lacunae of the prosecution in favour of prosecution only, and has based the conviction on such evidence, which scant even of outraging modesty, much less molestation and rape. ( 11 ) IN order to have the case fitted under the provisions of Section 3 (1) (xii) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned Sessions Judge has relied upon the 'caste certificate'. In fact, the story that was raised was that of a 'rape by a public servant on a woman in his custody' or 'on a woman in custody of a subordinate to such person', as also the case of a gang rape. The entire story is vividly revealable to be a craft work. It is thus seen from the evidence discussed above, not only that the conviction was unsustainable, but it smacks of the complaint being a craft work and a conspired act. The entire story is vividly revealable to be a craft work. It is thus seen from the evidence discussed above, not only that the conviction was unsustainable, but it smacks of the complaint being a craft work and a conspired act. There are no grounds whatsoever for raising reasonable preponderance of proof of facts of story of rape and atrocity to the complainant on account of her being a member of Scheduled Tribe. If at all there is any case of sexual intercourse, it is on what is revealed from the complaint, a clear case of consent in some or other way which the witness have not candidly disclosed, but are attempting to falsely and vexatiously involve the accused person. ( 12 ) ONE thing need to be appreciated is as to what trauma which the accused must have undergone when, other accused persons along with accused no. 1 were involved in the offence, without a single line imputation against them being found in the F. I. R. and investigation too. Similarly, when a public servant is required to face the trial, it was bound to be reflected adversely on his service career. The manner in which the incident has been complained of in contrast with the quality of evidence that has come on record, reveals that even the Police officers have moved faithfully to the ritual of investigation and playing safe in filing charge- sheet though there were no facts basing such a charge-sheet. It is seen that since under the s. C. and S. T. (Prevention of Atrocities) Act, any laxity in the investigation itself is a graver offence, no police officer wants to be bold to deny filing of charge-sheet. Officers feel it safe to escape and let the trial frustrate than to be bold and incur the risk of being a scape-goat, and be himself an accused in such a stern law. Insistence of police to strive for logical conclusion from the court seems to be a product of rigors put up by the law i. e. S. C. and s. T. (Prevention of Atrocities) Act. Consequential behaviour of the police support the proverb viz. "severer the punishment, seldom it is awarded". ( 13 ) THE result that ensues is that the judgment and order of conviction and sentence is found to be wholely unsustainable and deserves to be reversed. Consequential behaviour of the police support the proverb viz. "severer the punishment, seldom it is awarded". ( 13 ) THE result that ensues is that the judgment and order of conviction and sentence is found to be wholely unsustainable and deserves to be reversed. The appeal is allowed by setting aside the judgment and order impugned and accused is set at liberty. Bail bond stands cancelled. Appeal allowed.