Rameshwarnath Dhashrathnath ... vs The State Of Maharashtra Through ...
2003 Latest Caselaw 1256 Bom

JUDGMENT

J.N. Patel, J.

1. In Special case No. 3/1995, the Special Judge, Dadra and Nagar Haveli, by his judgment and order dated 29.3.2001 found the appellant guilty and convicted him for having committed offence punishable under Section 376 of I.P.C. and sentenced him to R.I. for seven years and to pay fine of Rs. 1000/- i/d to suffer S.I. for three months. The prosecutrix was a member of Scheduled Tribe, therefore, the appellant was also convicted for the offence punishable under Section 3(1)(xi) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act 1989, (hereinafter referred to as the "said Act" for the sake of brevity) and sentenced him to suffer S.I. for six months and to pay a fine of Rs. 500/- i/d to suffer S.1. for the month. He was also convicted for the offence punishable under Section 3(1)(xii) of the said Act and sentenced him to suffer S.I. for six months and to pay a fine of Rs. 500/- i/d to suffer S.I. for one moth. The Court observed that all the substantive sentences shall run concurrently and accused was also given set off for the period of imprisonment already undergone. It is this conviction and sentence which is the subject matter of challenge before us by the appellant accused in this appeal.

2. The Union of India has also preferred an appeal against the same judgment and order being dissatisfied with the quantum of sentence imposed by the Court and have filed an appeal for enhancement of sentence. We propose to dispose of both these appeals i.e. one filed by convict and the second by the Union of India, by this common judgment and order.

The background facts which led to the prosecution of the appellant Mr. Rameshwarnath Dashrathnath Upadhyay, are as under:-

3. The prosecutrix Somiben Raghubhai Tokaria (P.W.1) is resident of village Galonda Wadpada and was working in the house of one Ambuli at Silvassa and for that purpose she used to come at 8.00 a.m. and return home at 3.00 p.m. after finishing her work. She was married to Raghubhai Devjibhai Tokaria (P.W.4) and has two children from him i.e. Laleeta and Pramila. Her husband Raghu Tokaria was selling watermelons at Silvassa and for the said purpose he used to stay some times at Silvassa and some times he used to come at village Galonda. The villagers and her elder brother Gopji Ramji Tumbda had quarrelled with her suspecting her to be a "witch." As a result of this she decided to lodge a complaint at Silvassa Police station. So when she went to Silvassa for work, she decided to visit the police station and lodge complaint. At this juncture, she met the appellant-accused on the road opposite to Silvassa police station, on seeing the police constable she informed him the purpose of her visit, on which the appellant-accused advised her to get the complaint drafted through one Dhirubhai. It appears that the prosecutrix did not do so. During the holi festival when she came for work to Ambuli, she happened to meet the appellant-accused on two occasions, who enquired from her as to what happened to her case. She told him that she has not given any application. On this, the appellant-accused volunteered to help her by visiting her village so as to threaten the villagers and settle the case.

4. On the night of 8.4.94 at about 9.00 p.m. the appellant-accused visited the village of the prosecutrix and came to her house. At that time, her husband and children were present. The appellant-accused discussed the quarrel which she had with the villagers and then went to the house of her uncle Ladkabhai and called her there through her uncle and made enquiry about the quarrels. The appellant-accused assured the prosecutrix that he would settle the matter. By this time, it was 11.00 p.m.. The appellant accused got u to return to Silvassa. On this, the uncle of the prosecutrix told him that he will accompany the appellant-accused upto the road, but he refused and on the other hand, asked the prosecutrix to accompany him and leave him upto the road. On this, the prosecutrix accompanied, the appellant-accused. While going upto he road, when they reached near the school, the appellant-accused caught her hands, forcibly dragged her into the field to eastern side of the road, then he removed his khaki clothes, immediately laid her down, got loosen her saree and threatened her not to raise sound and held her rightly with both hands and put his penis in her vagina against her will and gave jerk and committed rape on her for about five minutes and discharged water in her vagina. In the meantime, Raghubhai, the husband of the prosecutrix who got worried on coming to know that the appellant-accused has asked his wife to accost him while returning to Silvassa and she has not returned, proceeded towards the road. On the way, he heard the cries of his wife which attracted his attention and in the torch light, he saw that the appellant accused was ling on the person of his wife. On this, Raghu gave two fist blows to appellant-accused on his back and tried to separate him from his wife, the appellant-accused also retaliated by giving two fist blows to her husband. Raghu, taking the advantage of the opportunity, collected the uniform of the appellant-accused, while the appellant-accused himself made good his escape by taking away the cap with him. In the meantime, the prosecutrix wore her saree and followed her husband. On the prosecutrix and her husband reaching the house, made it known to the neighbours and villagers about the incident. Raghu (P.W.4)-the husband of the prosecutrix, village Ex-Sarpanch Mangal also went to the house of Jagan. Thereafter, they went to the house of M.P. As he was not there, they met his brother Nareshbhai. Thereafter, they went to Silly at the house of Jagan and halted there during the night. In between, Jagan Devji approached Pravin Sinh Solanki (P.W.3). Forest Guard, who was residing at village Galonde in the Government quarter. It was about 2.00 a.m., the said Jagan requested Pravinsinh Solanki to give him torch. After some time, Jagan again returned to his house alongwith Raghu (P.W.4) and they showed him police uniform nameplate having name of accused, his identity card and a currency note of Rs. 50/- and disclosed him that the person whose clothes they have brought, had committed rape on the wife of Raghu. Then, they all decided to file a complaint. In the morning, they all went to Silvassa police station for lodging a report, which is about seven kilometers from their village. The prosecutrix accompanied with her husband and the villagers, went to police station in the morning to lodge a report. The police Officer on duty i.e. P.S.I. Jaising Rathod asked them to wait till Saheb comes. At about 3.00 p.m. Mohanbhai Patel (P.W.8) who was working as a Mamlatdar of Silvassa received a message from P.S.I. Silvassa that there was a complaint under Atrocities Act so he visited the police station Silvassa, at that time, the complainant Somiben was in the police station. He recorded her complaint as per her own version which is F.I.R. (Exh.13). The Executive Magistrate handed over the complaint to in-charge police station for registering the offence against the accused along with his forwarding letter (Exh.53) to P.S.I. Silvassa. On this, an offence came to be registered and Shri. Mohanbhai Patel (P.W.8)-Executive Magistrate, took over the investigation as the village Silly, is Union Territory and the Executive Magistrate is supposed to carry out the investigation in respect of offences under the said Act. Shri Patel (P.W.8) sent prosecutrix along with a lady constable to cottage hospital for medical examination along with a request letter (Exh.51). He also seized the police uniform in the presence of panchas which was produced before him by Raghu Devji Tokaria i.e. the husband of the prosecutrix under the seizure panchanama (Exh.21). The police uniform and the Articles 1 to 7 have been produced before the Court. On the next day i.e. on 10.4.94, when he went at Galonda, the prosecutrix Somiben showed the Executive Magistrate, the spot of occurrence of the offence in the presence of police officers and panchas (Exh.23 B). The Executive Magistrate also seized the clothes of the prosecutrix which she was wearing at the time when she was raped. The clothes were attached under panchanama which Exh.44, consisting of Saree, blouse and nicker i.e. Article 8, 9 and 10 and were produced before the Court. Thereafter, Shri. Patel met P.S.I. so as to cause arrest of the appellant-accused and proceeded further to record the statements of witnesses. The appellant-accused was arrested by P.I. Solanki. On 12.4.1994, Mr. Patel went to police station and recorded the statement of appellant-accused and submitted report to the Court that arrest of the accused by P.I. Silvassa should be deemed to be arrested by him in Atrocities matter. Thereafter, Mr. Patel handed over the attached muddemal to P.S.I. Silvassa for sending the same to the Forensic Laboratory. According to the prosecution, in the year 1995 (March), the Administrator of Union Territory had issued a notification and empowered all PSI's of the Territory to investigate the offence under the said Act and, therefore, Mr. Patel handed over the investigation of the matter to P.S.I. Silvassa to do further investigation in the case. Mr. Patel. Executive Magistrate has also certified that the prosecutrix belongs to caste 'Varli' which is notified as Scheduled tribe, and he issued a certificate (Exh.54) in favour of the prosecutrix Somiben Raghu Tokaria. The appellant-accused on being arrested, was sent for medical examination. Dr. Maganbhai Dhodia (P.W.2) had examined him and issued M.L.C. form of his examination. The prosecutrix was examined with her consent by Dr. Anil Mahala (P.W.7) and her blood sample was also collected. The muddemal seized in the case, were forwarded to the Forensic Science Laboratory at Ahmedabad for report. The investigation in the case was taken by Mahendrasinh Solanki (P.W.13) completed the remaining formalities in the case, which was registered vide crime No. 8/94 by the Executive Magistrate. After completing the investigation, on 15.12.1995 he submitted the charge-sheet before the Court in both the cases against the appellant-accused.

5. As the offence with which the appellant-accused was charged was triable by the Special Judge under the said Act, the case was registered as a Special Case No. 3 of 1995.

6. On 29.11.1997, the learned Special Judge framed charges against the appellant-accused for having committed offence punishable under Section 3(1)(xii) and 3(2)(v) of the said Act. The appellant-accused also came to be charged under Section 376 of I.P.C.. The appellant-accused pleaded not guilty and claimed to be tried. The appellant accused has taken various defences. Firstly that he has been falsely implicated at the behest of local Member of Parliament against whose younger brother he has taken action. Secondly that even if it is proved that he committed sexual intercourse with the prosecutrix it was with her consent and that the witnesses have deposed against him in collusion with the police and M.P. and the police have cooked up false case. The appellant-accused also examined the witness in his defence so as to explain the seizure of his uniform and the reason for his false implication.

7. In the course of trial, an attempt was made on the part of the appellant-accused to raise an objection as to the jurisdiction of the special Judge in trying him for having committed offence under various provisions of the Act for want of notification. But the said preliminary objection was rejected by the learned Judge.

8. On conclusion of the trial, the trial Judge found that the appellant-accused guilty of having committed offences for which he has been convicted and sentence in accordance with the judgment and order dated 29.3.2001.

9. While imposing sentence, the appellant-accused was heard in the matter and in the discretion of the learned Judge, he found that the sentence of seven years R.I. with fine of Rs. 1000/- and sentence under Section 376 of I.P.C. would be sufficient to meet the ends of justice. He noticed that the minimum sentence which is prescribed by law in case of police officer who is accused of rape, is punishable with imprisonment for a term of ten years or more against a person who is a member of a Scheduled Caste or a Scheduled Tribe it shall be punishable with imprisonment for life and with fine, mentioned in the judgment. The learned judge imposed the sentence of imprisonment for a term less than 10 years, for the reasons given therein.

10. Mr. Tripathi, the learned counsel appearing for the appellant-accused submitted that the appellant-accused has been falsely implicated by the police at the behest of local M.P. and for this purpose, the appellant accused has brought on record certain facts by leading evidence in his defence to show why the appellant-accused has been implicated in this case. It is submitted that Local M.P. belongs to same tribe as that of the prosecutrix, the appellant accused in discharge of his duty, has arrested the brother of local M.P.. Our attention is drawn to the evidence of Bhateshwarnath Upadhyay (D.W.1) who has given evidence before the Court that one Raviabhai, the relative of local M.P. was arrested by the accused since he was possessing some weapon and on the pressure of local M.P. Raviabhai, was let off and on the count local M.P. was annoyed and dissatisfied with the accused, and that is how he has been falsely implicated in the case and therefore, according to the learned counsel, this is how the appellant-accused has been falsely implicated in the case.

11. The learned counsel for the appellant-accused submitted that for the said purpose the local police was also in collusion with the local M.P. and they obtained police uniform of the accused by deputing two police constables on 8.4.1994 while the appellant-accused had gone out towards Bazar. Bhateshwarnath Upadhyay (D.W.1) has stated that he was misled into giving police uniform of the accused and that is how he gave pant and shirt to the police constables and when the appellant-accused came to know about it on returning from Bazar, he got frightened and immediately rushed to the police station. Thereafter, they had reached to police station where they were informed by P.S.I. that the accused has been booked at the instance of local M.P., therefore, charge-sheet has been filed against him.

12. Mr. Tripathi, the learned counsel for the appellant-accused submitted that even if the prosecution case is accepted that the appellant-accused has committed sexual intercourse with the prosecutrix Somiben, still it cannot be said that the appellant-accused has committed offence of rape for which he has been found guilty and punished. It is submitted that from the evidence on record, it can be sufficiently demonstrated that the appellant-accused did not commit rape but had sexual intercourse with Somibai out of her willingness and consent. In support of this contention the learned counsel has drawn our attention to the fact that if the evidence of Somiben (P.W.1) and her husband Raghu (P.W.8) is appreciated in proper perspective, it rather disclose that the prosecutrix accompanied the appellant-accused out of her own freewill and consented for sexual intercourse. It is submitted that is highly improbable that when the male members of the family are present, it would not be appropriate for prosecutrix to accompany the appellant-accused. On the other hand, it indicates that Somiben herself accompanied the appellant-accused when he was returning from the village to Silvassa. It is submitted that this has to be appreciated in the backdrop that the prosecutrix and developed intimacy with the appellant-accused as they met many times before the alleged incident occurred, which she herself admits in her evidence before the Court. Whenever she went to Silvassa for work she used to meet the appellant accused near Silvassa police station. It is further submitted that the incident as narrated by the prosecutrix, also discloses her consent. Firstly, that the prosecutrix on the say of the appellant-accused to remove his uniform, so that they could have sexual intercourse. It is submitted that if the prosecutrix was not willing party, her natural conduct would have been, to run away from the spot, if she found that the appellant accused had evil designed to ravish her and for the said purpose he had taken out his clothes. In support of this contention, the learned counsel has placed reliance on the decision rendered by the Supreme Court in the case of Kuldeep K. Mahato v. State of Bihar reported in 1998 (37) ACC 462. In the said case the Supreme Court gave benefit to the accused when it found that the prosecutrix was consenting party as she had ample opportunity to run away. Further, that the prosecutrix was not put in physical restraint and her movements were not restricted as no injury were found on her body and private parts. In is further submitted that in the subsequent decision rendered by the Supreme Court in the case of State of Rajasthan v. Kishanlal reported in 2002 Cri. L.J. 2963. The Supreme Court also gave benefit to the accused in the case of rape where the conduct of the prosecutrix was found to be unnatural.

13. Another important aspect to which our attention is drawn by the learned counsel for the appellant-accused is that the prosecutrix in her evidence has not given any particulars or made any allegations that the sexual intercourse was committed on her against her wish by putting her under threat or restraint and except for deposing that she was raped, she has not given further details which would show that the prosecutrix was not willing to have sexual intercourse with the appellant-accused. The learned counsel has placed reliance on the decision rendered by the Supreme Court in the case of Suresh N. Bhusare and Ors. v. The State of Maharashtra , wherein it is observed that if the circumstances show that the conduct of the prosecutrix would indicate her willingness then no reliance can be placed on her evidence. According to the learned counsel for the appellant-accused, this is a fit case where the evidence being cryptic, cannot be relied upon.

14. The learned counsel for the appellant-accused submitted that if the prosecutrix was unwilling partner in the instant case and was actually ravished by the appellant-accused against her wishes which would have been very natural for her to have offered resistant and could have tried to escape and if the prosecution case is to be believed, the appellant-accused laid her on the ground which was a field having dry land, then there was no resistance offered by the prosecutrix. In addition to suffering injuries on her private parts, she would have also suffered injuries on other parts of the body. Further she would have also resisted the appellant-accused to get free which could have caused injuries on his person. But there is no such evidence on record. On the other hand, the medical evidence shows that the prosecutrix did not have any injury on her private parts which can be gathered from the evidence of Dr. Anil Mahal (P.W.7) who examined the prosecutrix. It is submitted that if Dr. Mahala would have noticed any such injuries on the body of the prosecutrix, there is no reason why he has not mentioned about it in his medical examination report.

15. It is further submitted that very fact that the prosecutrix has permitted to the appellant-accused to insert his penis in her vagina and enjoy his lust with her till discharge of water, as can be seen from her evidence, it is a clear case of consent. In a similar case, the Rajasthan High Court in the case of Dhokla Ram v. State of Rajasthan, reported in 2001 Cri. L.J. 3547, has held that the conviction of accused for offence of rape, was not proper.

16. According to the learned counsel for the appellant-accused, while the appellant-accused and the prosecutrix were having sexual intercourse, it was interrupted by the visit of Raghu, her husband and that is why the case of consent became an offence of rape. In support of this contention, the learned counsel for the appellant has relied upon a decision in the case of Bharat v. The State of Madhya Pradesh, reported in 1992 Cri. L.J. 3218. It is further submitted that in the case of Tukaram and Anr. v. The State of Maharashtra reported in 1978 Cri.L.J. 1864, the Supreme Court has held in identical case that where police constables were involved, and if the circumstances negativing existence of "fear" and story of "passive submission", accused, held, entitled to be acquitted. It is submitted that as the appellant-accused and the prosecutrix had developed intimacy and they were having intercourse attending circumstances like non existence of injury on the person of the prosecutrix, her failure to resist is indicative and in her evidence there is not even a whisper that she tried to run away or raised alarm, itself goes to show that merely because the appellant-accused was a police constable, it cannot be inferred that he has committed rape on the victim.

17. The learned counsel appearing for the appellant-accused also drew our attention to the fact that in the present case not only there is delay in filing an F.I.R., but in fact two/three F.I.Rs are on record. The first F.I.R. has been registered on 9.4.94 at 19.00 hours which is Exh.13 and second is also on the same date and time which is at Exh.59 and the third F.I.R. is lodged on 10.4.94 at 4.45 hours which is at Exh.60. It is submitted that this indicates the fact that the repeated F.I.Rs. came to be registered against the appellant-accused at the behest of the local M.P.. One was lodged at the instance of the Executive Magistrate and the other two were lodged at the police station by lady police constable, therefore, according to Mr. Tripathi, the learned counsel appearing for the appellant-accused, the probability of false implication, cannot be ruled out.

18. The learned counsel appearing for the appellant-accused further submitted that the blood group of the appellant-accused is B-RH positive which is different from that of the semen stains found on the saree of the prosecutrix which is that of AB and different than the appellant accused. It is submitted that though the appellant-accused had admitted the Forensic Laboratory's report, that by itself does not show that the prosecution has proved that the blood and semen of the appellant-accused is of group AB. Mr. Tripathi submitted that the appellant-accused got himself examined by one Doctor and Pathologist to show that his blood group is 'B' and not 'AB' as claimed by the prosecution and is even prepared for further medical and forensic examination.

19. Mr. Tripathi, the learned counsel appearing for the appellant-accused, therefore, submitted that this is a fit case that the appellant-accused deserves to be acquitted as the prosecution has failed to prove that he has committed any offence much less heinous offence like rape, therefore, the appeal deserves to be allowed and the appellant should be exonerated from all the charges.

20. On the other hand, Mr. R.M. Agarwal, the learned counsel appearing for the Union of India submitted that this is a fit case where the police officer who is responsible to save and protect the honour of women, has committed heinous offence of rape and that too on hapless victim who is tribal and rustic lady residing in a village, having no access to justice.

21. Mr. Aggarwal submitted that the old theory that the victim who is posed as an accomplice, her evidence should be considered with necessary care and caution and that the Court should normally look for corroboration, no more holds good. It is therefore, submitted that sole testimony of the prosecutrix alone is sufficient to bring home the guilt. Mr. Agarwal submitted that in the present case there is no reason why Somiben-prosecutrix would falsely implicate the appellant-accused at the cost of her honour and, therefore, the contention of the learned counsel for the appellant-accused that he has been falsely implicated at the behest of the local M.P. deserves to be rejected by the Court. It is submitted that the appellant has not cross examined the witnesses particularly the prosecutrix and her husband that she has falsely implicated the appellant-accused at the behest of local M.P.. Mr. Agarwal submitted that though it has come on record that the prosecutrix alongwith her husband and villagers went to the office of M.P. after the victim was raped but he was not there and only his brother was found. But there has been nothing brought on record to show that the local M.P. has in any manner influenced the investigation of the case and therefore, this contention of the appellant-accused cannot be accepted.

22. Mr. Agarwal has further submitted that the appellant-accused has tried to build up his defence by examining his own brother to explain very important incriminating circumstance against the appellant-accused i.e. seizure of his uniform by the Executive Magistrate from the husband of the prosecutrix. It is the case of the appellant-accused that the police has got the uniform of the appellant-accused collected from his house in his absence by deputing two police constables and if that is so, there is no reason why the appellant-accused could have remained absconding and did not report the matter to his superiors and, therefore, this is a false explanation which rather can be construed as an additional link in the chain of circumstances which supports the prosecution case.

23. Mr. Agarwal has further submitted that the appellant-accused has tried to take contrary plea in his defence. Firstly, it is his case that he has been falsely implicated in the case by the local M.P. and on the other hand he claims that he had sexual intercourse with the prosecutrix with her consent. Mr. Agarwal has pointed out to us that this point has been dealt with by the learned trial Court in his judgment and the learned trial Court has come to the right conclusion considering the attending circumstances enumerated in the judgment that the theory of consent, cannot be accepted.

24. Mr. Agarwal has further submitted that the court may take into consideration the fact that the prosecutrix was grown up lady with two children and therefore, it is not necessary in each and every case that the fact that she has been raped requires to be corroborated by the medical evidence i.e. if she was sexually assaulted it would result in causing injury to her private parts. Mr. Agarwal has submitted that the prosecution has proved its case beyond reasonable doubt against the appellant-accused. It is submitted that the appellant-accused has taken advantage of the gullible victim who actually approached him for seeking protection against the villagers who were suspecting her to be a witch and taking advantage of her poverty and ignorance rather than taking her to police station and getting the report lodged, misled her by directing her to go to petition writer and then offering himself to redress her grievances by coming at her house instead of registering her complaint in police station. Mr. Agarwal has further submitted that it is highly improbable that the women would agree to have sexual intercourse with the accused who had come to the village in the late night and that too in police uniform, when her husband and family members and relatives were present with whom, he had discussed about the quarrel and further while she was taken by the police constable to escort him upto the road which was approximately 100 meters away from the residence of prosecutrix. It is submitted that all these attending circumstances have been properly considered by the learned trial Court and therefore, the contention of the learned counsel for the appellant-accused has no merit and the appeal deserves to be dismissed.

25. Mr. Agarwal has placed reliance on various authorities in support of his contention. It is submitted that most of the authorities have been considered by the Supreme court in a landmark decision rendered recently in the case of Sudhansu Sekhar Sahoo v. State of Orissa reported in 2003 ALL MR (Cri.) 2387 (S.C.). The Supreme Court has rather summed up the observations in the said case as under:-

"It is well settled that in rape cases the conviction can be solely based on the evidence of the victim provided such evidence inspires confidence in the mind of the Court. The victim is not treated as accomplice, but could only be characterised as injured witness. It is also reasonable to assume that no women would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, as evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material."

26. Mr. Agarwal submitted that he does not want to overburden the Court by citing various authorities and, therefore, he has highlighted few of them such as the case of State of Maharashtra v. Chandraprakash Kewalchand Jain . In which the Supreme Court has observed that "to insist on corroboration except in the rarest of rare cases, is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a women that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime." It is submitted that in the same decision the Supreme court has rather set out the guide-lines by which the trial court should examine such cases and particularly those in which police officer are involved. The Supreme Court has observed that when such crime is committed by a person in authority e.q. a police officer, the Court's approach should not be the same as in any other case involving a private citizen. By our criminal laws wide powers are conferred on police officers investigating cognizable offences. The infrastructure of our criminal investigation system recognises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agency and notwithstanding this concern, if a police officer misuses his authority and power while dealing with a young helpless girl aged about 19 or 20 years, her conduct and behaviour must be judged in the back drop of the situation in which she was placed. The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the Court while evaluating the conduct-evidence of the prosecutrix. A person in authority, such as a police officer, carries with him and awe of office which is bound to condition the behaviour of his victim. The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped. She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives,including her husband. Instead of treating her with compassion and understanding as one who is an injured victim of crime, she is, more often than not, treated as a sinner and shunned. It must, therefore, be realised that a woman who is subjected to sex-violence would always be slow and hesitant about disclosing her slight. The Court must, therefore, evaluate her evidence in the above background.

27. We refrain from referring to various other authorities cited by Mr. Agarwal but we have taken a note of the various decisions which throw light on how to appreciate the evidence in such matters. One of the recent judgment of Division Bench of this Court rendered in the case of State of Maharashtra v. Hanumanta @ Hanmappa Malappa Koli and Anr. reported in 2003 ALL MR (Cri.) 2169, in which this Court has observed that the "prosecutrix giving complete description of the entire evidence from the beginning of her being accosted and left alone in the ditch- Her testimony corroborated by disclosure of incident to her mother - Conviction can be based on solitary testimony of prosecutrix - Merely because semen was not found in the swab, it cannot be said that no rape has taken place- even slight penetration is also enough for the purpose of recording a finding of the offence of rape." This was so done with the prosecutrix who was 13 years old when the incident took place, has boldly stated before the Court of the sexual assault on her, therefore, the Court was required to make such observations. It has been further observed that the offence of rape is heinous. The punishment for persons committing such offence must always be deterrent.

28. The only point which requires consideration is whether the prosecution has been able to establish that the appellant-accused has committed rape on the prosecutrix Somiben Raghu Tokaria (P.W.1). The prosecution star witness is the prosecutrix herself. In her evidence before the Court she has narrated the story in a very natural manner. Initially she has given her background that she has married to Raghu (P.W.8) and has two daughters out of the wedlock. She has stated that she used to go for work at the house of one Amboli at Silvassa from village Galonda. For the said purpose she used to come from village Galonda in the morning at 8.00 a.m. and used to return to her village Galonda at about 3.00 p.m.. Her husband used to carry on business at Silvassa of selling watermelons and he used to stay some times at Silvassa and some times he used to come at village Galonda. As regards the fact how she came into the contact with appellant-accused Rameshwaranth Upadhyay, police constable, it is her evidence that the villagers were suspecting her to be a witch and on this count, quarrel took place between the prosecutrix and the villagers. Therefore, she decided to file a report in police station against those people from Golanda. When she went to Silvassa police station, she happened to meet the appellant-accused outside the police station, there appellant-accused advised her to give one written application and also advised her to go to petition writer Dhirubhai and get the complaint drafted from him and thereafter, told that something can be done. Probably, because of this botheration, she did not lodge the report. On the next day, she went to work at the house of Amboli, however, on the way, accused met her near the police station and made inquiries with her about the application to be filed in the police station which she told him, that it could not be done. On this accused told her that he will settle the matte and that is how on the fateful day, the appellant-accused police constable Upadhyay, visited the village Golanda at about 9.00 p.m. in order to make the enquiries. Initially the appellant-accused came to her house and after having talks with them i..e the prosecutrix and her husband, went to the house of her uncle Ladkabhai. There, he also made some enquiry with her uncle about her dispute with villagers and took water there. At that time, the prosecutrix was present when there was a talk between accused Upadhyaya and her uncle. Her uncle then went alongwith the accused to leave accused upto the road, however, accused told her uncle that don't accompany him, however, send her with him. Therefore, she accompanied the accused to leave him upto road. It appears that when they walked for some distance away from the village, the accused dragged her towards field. She has categorically stated that at that time the appellant-accused was in uniform. The accused asked her to remove her clothes which were on her person and committed rape. After the act of committing rape was over, her husband came there. When her husband came at that time, the accused was on her person. Her husband then dragged accused and slapped him. Her husband thereafter took the uniform of accused which were lying on the ground. She then went home. Accused left the place. In her cross examination further details of how the incident has taken place are brought on record, particularly on the point where the actual incident took place and she has stated that the place of incident may be at distance about 40 meters from the road which leads from Silly to Silvassa. The agricultural field where the incident took place was without any crop at that time or fallow land. On the land dry leaves were lying. The place of incident was not clean. Her clothes were on her person. However, accused removed clothes from his person and kept by the side of spot of the incident. The clothes which were on the person of accused, were removed by him. Her husband pulled the accused and gave one slap and when he was separated the accused then gave slaps to her husband. Accused then ran away towards Silvassa side. She alongwith her husband then returned towards their house. When she and her husband returned to their house, her sister was there at that time. Her husband then raised shouts, villagers then came to their house. She has given names of the persons who had gathered i.e.her uncle, Keshav, Pravin and others. In all, they were 14 in numbers. She alongwith her husband talked to those persons on the Ota of her house. Her husband went to M. P's. office at Silvassa, which was at about 2.00 to 3.00 a.m. during the night, Jagan, Pravin, Mangala and Bhikla accompanied her husband at that time. Her husband returned to their house at about 7.00 a.m. in the morning and thereafter, she went to police station at Silvassa. This evidence of witness stands corroborated by the First Information Report (Exh.13) which was recorded for the first time at Silvassa police station at the behest of Executive Magistrate on 9.4.1994 at 19.00 hours.

29. Mr. Tripathi, the learned counsel for the appellant accused has submitted that in the course of filing of the complaint itself when they were coming to police station, those persons were telling her about filing of complaint in the police station and what statement should be given. IN order to show that the complainant was tutored and complaint is concocted, we do not find it to be so for the simple reason that what people insisted her was to narrate in her report what has happened.

30. The evidence of the prosecutrix also stands corroborated by the evidence of her husband on the point of visit of the appellant-accused in the night time in the village to make enquiry that he was in uniform and that he made enquiries from them as well as from Ladakbhai i.e. uncle of the prosecutrix. Raghu Tokadia (P.W.4) i.e. husband of the prosecutrix has given evidence that when he and his wife alongwith the appellant-accused were at the house of Ladku the uncle of his wife Somiben, as his daughter was not feeling well, he returned from the house of Ladku. After 15 minutes, he again came back to the house of Ladku. At that time his daughter namely Lalita told him that his wife Somiben had gone alongwith the appellant-accused to show him the way. She also told him that Ladku was alongwith appellant-accused however, the appellant-accused told him not to accompany. He thereafter went towards road which leads from Silly to Silvassa. On the way he heard cries of Somiben. He thereafter went towards the place. he was having torch with him at that time. At that time, he saw that Somiben was not having clothes on her person. He also saw that the appellant-accused was laying on the person of his wife. He thereafter went there, gave two blows with torch to the appellant-accused, however, he could not be separated and therefore, he dragged him by holding his baniyan. Only baniyan was on the person of the appellant-accused at that time. The appellant-accused thereafter gave two slaps to him. He then took the said clothes i.e. uniform and ran away from the place. The prosecution witness further deposed that the clothes and other Articles 1 to 7 produced before the Court were the same. There was also a currency note of Rs. 50/- an identity card and whistle and name plate. He then narrated about the said incident to Ex-Sarpanch Mangalabhai. He thereafter went to the house of Jagan and thereafter went to the house of the M.P. however, M.P. was not there, he met his brother Nareshbhai. They all thereafter went to Silly at the house of Jagan and halted there during the night. It is at this stage Jagan went to Pravin Bhai the Forest Guard which stands established by the prosecution by examining Pravinsinh Solanki that one Jaganeviji had come to his quarter at Galonda on 9.4.94 at about 2.00 a.m. (midnight). At that time, Jagan requested him to give torch and he accordingly gave him torch. Jagan thereafter, again came to his house within 15 minutes alongwith Raghu. They showed him khaki uniform (police uniform) on which there was a name plate, one identity card and a currency note of Rs. 50/-. They further disclosed him that the person to whom the clothes belong had committed rape on the wife of Raghu and they further disclosed that they were going to file complaint. Pravinsingh (P.W.3) has supported Raghu on this count before the Court. In the cross examination of these two witnesses, nothing has been brought on record to show that they are giving false evidence before the Court. On the contrary it goes to explain that how the clothes of the appellant-accused came in the custody of Raghu. Otherwise there is no reason why Pravinsingh Solanki (P.W.3) confirmed about it. Probably the appellant being a Government servant, the villagers thought it proper to show him khaki uniform. Therefore, the defence put up by the appellant-accused that uniform was procured from his brother, does not click. On the other hand, the evidence of the prosecutrix, her husband and Pravin Singh if read together, clearly makes out a case that the appellant accused had visited the house of the prosecutrix on that night in uniform in order to settle her dispute and taking advantage of his position and helpless situation of the victim, took her alongwith him on the pretext that she should lead him upto the road and taking this opportunity, dragged her and committed rape.

31. The evidence of prosecutrix also stands corroborated by the medical evidence led by the prosecution. The first is in respect of medical examination of the prosecutrix in cottage hospital itself where she was examined by Dr. Anil Mahala (P.W.7) who has given evidence before the Court that on 9.4.94 one Somiben Raghu was brought by police constable Mrs. N. Desai B.C. No. 106 at 10.40 p.m. for medical examination. When victim was brought before him, he asked her name, age and address. She alleged that she was raped at Galonda Wadipada on 8.4.94 at about 10.45 p.m. near the school. Then the said Doctor had obtained her consent to get examined by him in presence of staff nurse and lady constable. Her consent was recorded on the paper along with the history and she put her thumb impression thereon, which is placed at Exh.50. Dr. Mahala then examined patient. He did not find any external injury on the breast or on inner thighs. Dr. Mala then collected vaginal swab, public hair and blood of the victim. According to Dr. Mahala her blood group was A - RH positive, which he recorded at the backside of Exh.50. He has also recorded the findings that no injuries were found on the private part of the victim. He collected sample of vaginal swab and public hair and blood of the victim and sealed them in the hospital and handed over the same to the constable for taking them to Forensic Science Laboratory. In the cross examination of this witness, nothing has been brought on record to show that his evidence is not reliable.

32. Now let us see the Forensic evidence led by the prosecution in the case. Exh.45 is a letter addressed by the Deputy Director, Forensic Science Laboratory, Ahmedabad to the Police Sub-Inspector, Silvassa Police Station along with the report No. FSL/TPN/94/8/612 which is in respect of the articles seized by the police in the course of investigation and forwarded to the Forensic Science Laboratory. In the said report sample No. 5 is a Saree which is described as one dirty having sky blue and pink colour small dots design in while colour and having sky-blue border cotton saree. Said sample is having light brown and yellow dots. Out of which, some dots are encircled with blue ink. The result of examination of sample No. 5 is that blood was not found on it but presence of human semen found on sample No. 5 to be of blood group "AB". Similarly, on arrest of the appellant-accused, he was sent for medical examination and Dr. Maganbhai Dhodia (P.W.2) had examined the accused. Dr. Dhodia has been examined as a prosecution witness No. 2. In his evidence, he has stated that he has examined the appellant-accused namely Rameshwarnath Dashrathnath Upadhyay on 11.4.94 at about 4.00 p.m. On examination he noticed that the clothes which were on the person of the accused, were normal. The external appearance of quential i.e. penis glan penis was normal. No sign of discharge of ulcer and no sign of recent intercourse found. The multiple abrasion over the knee joints on interior and medical surface found. No external injury detected on face, and back of chest wall. The sample of public hair and seminal fluid preserved and handed over to police constable I.K. Agri. B. No. 203 and Dr. Mahala has taken sample as light yellow colour white colour liquid in sealed glass bottle and about 2.00 Ml reddish brown colour liquid and forwarded them to Forensic Laboratory and liquid of sample No. 9 is identified as human semen and liquid of sample No. 10 is identified as blood which was brought from the body of appellant-accused. In the Serological examination result Liquid (semen) and Liquid (blood) was found to be a blood group of "AB" and the blood found to be a human. Therefore, the nature of injury found on the knees of the appellant-accused and serological examination of semen and blood, shows that it was of blood group "AB" which was also found on the saree of victim Somiben i.e. prosecutrix which sufficiently connects the appellant-accused to the crime. The appellant-accused has not given any explanation as to how he suffered injuries to his knees and we have no hesitation to draw an inference that such injuries can be found if the person commits sexual intercourse with woman lying on the ground. In so far as the seizure of the clothes of the accused is concerned i.e. Article 1 to 7, the prosecution has established the same through the evidence of Lakhu Vartha (P.W.5) who has proved the panchanama Exh.21. The accused has not disputed the spot panchanama drawn by the police at Exh.23-A and 23-B. In the course of investigation, the police also attached the underwear of the appellant-accused vide Exh.24 which has been of no use of to the prosecution The fact that the accused was found absconding and was arrested, stands established by the arrest panchanama at Exh.25 and evidence of P.I. Solanki (P.W.12). This shows that the appellant-accused was not available from the night of 9.4.94 till 11.4.94 when he was arrested. As regards the seizure of Saree, blouse and nicker, the police have proved it by examination of Magji Bhawar (P.W.6) that the saree which was found stained with semen and having blood group "AB", which, according to the prosecution was also the blood group of the appellant-accused. The said panchanama of seizure of clothes is at Exh.45.

33. Next question which requires to be dealt with is the delay in registering the First Information Report. Much hue and cry has been made by the learned counsel for the appellant-accused that he has been falsely implicated at the behest of the local M.P.. Unfortunately this defence has not been put to the prosecutrix or other witnesses namely the husband, Pravinsingh and others who have been examined by the prosecution. What we find from the evidence of prosecutrix, her husband and others who had accompanied them to the police station is that the prosecutrix alongwith her husband and villagers did go to silvassa police station right at the earliest opportunity after the incident had occurred. After the incident, the victim, her husband and the villagers had to run from pillar to post to seek justice as the prosecutrix was raped by no other person than the police officer and ultimately they decided to go and lodge report at Silvassa police station. Unfortunately, the officer i.e. Jaisingh Rathod who was present at the police station did not take down their report and kept them waiting on the pretext that let Saheb come. We fail to understand as to why the superior officers of the police at Silvassa or for that reason, the Chief of police and his superiors failed to take cognizance of report attempted to be lodged by the victim accompanied by her husband and villagers, probably because it was against police constable of their police station. This fact shows the mis-conduct of P.S.I. Jaisingh Rathod in not recording the F.I.R. of the prosecutrix. This shows that the police officer was not keen to register the offence as it was committed by the police constable and in this case the victim was unfortunate, hapless triable lady an had no one to save her so as to question the authority of police an their conduct in not registering the offence. It is only after arrival of Mr. Mohanbhai Patel (P.W.8), information was taken down and investigation started into the matter and the report was taken down not once, but thrice, for which one cannot find fault with the poor prosecutrix or her husband. The fault clearly lies at the door step of the police. This also goes to show that the police officials who were at the relevant time posted at Silvassa police station, failed to take cognizance of serious offence like rape committed by the police constable. We do not find any justification as to why they delayed the matter. For them it might be usual thing i.e. committing rape on tribal woman who had no access to justice and could not make much hue and cry as even the senior police officers failed to take note of this lapse on the part of the police officer who was present at the police station and failed to register the offence of rape committed by the police constable within his jurisdiction and that too against the victim who belongs to scheduled Tribe. We are constrained to make this observation to express our anguish at the authorities who turned Nelson's Eye on the conduct of the police officer and failed to take departmental action against them for gross dereliction of duty. We are quite hopeful that Mr. Agarwal the learned prosecutor of Dadra and Nagar Haveli, Silvassa would bring this observations to the notice of the Secretary, Home Department, Union of India so that departmental action is initiated against such officers.

34. From the evidence on record we are quite satisfied that it is not the case where the appellant-accused has been falsely implicated. The other defence put forward by the appellant-accused is that the sexual intercourse was with the consent of the prosecutrix. The learned counsel of the appellant-accused has tried his best to establish the consent by referring to various attending circumstances including the conduct of the prosecutrix.

35. Mr. Agarwal the learned P.P. brought to our notice that the trial court has considered all these aspects and held that the consent stands rules out in the given facts and circumstances in the judgment while dealing with this point. The learned Trial Court in para 28 has observed that it is also pertinent to note that when her uncle and husband etc. were aware that the prosecutrix had gone to accompany the appellant-accused upto the road, it is highly improbable that she would have given consent exposing to the risk of getting caught red-handed by her relatives. It is not the case that she had gone with the appellant-accused without knowledge of anybody. Further the court has also dealt with the point and observed that the accused had dragged her upto the field, there was no opportunity for her to run away. It may also be noticed that it was odd hours of night and lonely place. Further the appellant-accused was police constable a person in power and had given threat, therefore, there was no scope of hue and cry, still the evidence of her husband indicates that after hearing her cries, her husband could reach to the said place of incident. Despite of giving two blows by torch by the husband of the prosecutrix to the appellant-accused, the accused was not ready to separate her and in turn, had given two blows to the husband of the prosecutrix. This conduct of the appellant-accused shows as to how he had become mad of lust of sex. The learned Judge is quite right in observing that probably the appellant-accused must have over powered the prosecutrix and made her helpless and that there is not much cross examination on this point to indicate consent on her part and therefore, it is difficult to accept that she was consenting party as has been tried tobe submitted on behalf of the appellant-accused. We concur with the findings of the leaned trial court on this issue.

36. Another important point which was raised by the learned counsel for the appellant-accused was that there was no physical injury either on the private part or body of the prosecutrix to show that she resisted the sexual intercourse and that this would indicate consent. This does not appeal to us at all. In earlier part of our judgment we have already observed by referring to various decisions of the Supreme Court that sole testimony of prosecutrix can be relied upon to arrive at a finding whether she has been raped or not. In so far as identity of the appellant-accused is concerned, it is not in dispute as regards the contention of the learned counsel for the appellant that there was no injury found on the prosecutrix, one cannot overlook that in case, a victim being a mother of two children, no injury on her private parts was expected. She belongs to such community i.e. 'Varli' which is recognised as Scheduled Tribe and being a poor and rustic village. It was not expected of her to know as to what she should do particularly in the background when the police constable who had come in uniform to settle her dispute, has taken her with him. What we find is that she being a tribal woman and the appellant-accused being a police constable who had assured her to settle her dispute and these are the factors which prevailed on the prosecutrix which had put her in state of helpless situation but she did make an attempt and cried for help, which is evident from the evidence of Raghu, her husband who had come in search of her and when he heard her cries and his attention was diverted and that is how the accused could be caught.

37. The conduct of the appellant-accused right from the first encounter he had with the prosecutrix, was itself suspicious. The prosecutrix having gathered courage when visited Silvassa police station to lodge a report against the villagers who were quarrelling with her on the pretext that she is a witch happened to fail in the net of the appellant-accused. As a police constable, it was the duty of the appellant-accused to have guided the rustic tribal village woman properly and assist her by taking her to his superior officers. On the other hand, the appellant-accused himself mis-guided her by directing her to go to the petition writer Dhirubhai and get her complaint drafted and written and then only it can be taken care of. This rather reflects that how poor people who have no access to justice are treated particularly by the police. Thereafter, when the prosecutrix found it inconvenient and lost hope in approaching the police, next time when the appellant-accused met her, he made enquiries from her as to what happened regarding her complaint and she informed him that she could not file complaint. It is at this stage that the appellant-accused thought of exploiting the situation and assured her that he would personally take care of the matter and visit the village and settle her case by threatening the villagers. It is this assurance which was given by the appellant-accused which won confidence of the prosecutrix and when the assurance was given by the police constable posted at Silvassa police station, she was confident that her grievance would be redressed and as the constable was ready to help her, naturally she would feel obliged and that is why the police constable visited her place in the night of fateful day and while returning asked her to escort him, she did not hesitate to do so. As in all probabilities, she carried the impression that the appellant-accused has taken all the trouble to seek justice for her and, therefore, it was her moral duty to see him off upto the road, that is why the appellant-accused has taken all the trouble to seek justice for her and, therefore, it was her moral duty to see him off upto the road, that is why the appellant-accused exploited the situation and raped her.

45. Much has been said about medical evidence in the matter. We have dealt with it earlier in our judgment but we may again re-affirm that the medical evidence is only confirmatory in nature and it is not necessary that the prosecutrix's evidence on the point of rape should be corroborated by medical evidence; to mean unless the injuries are found on the private parts of prosecutrix, no credibility should be attached to her evidence. This contention deserves to be outrightly rejected. We do not think that this would be consistent with the principles of well settled law in case of victim of rape. In the case of Shivaji Sahebrao Bobade and Anr. v. The State of Maharashtra , Supreme Court has observed that: "dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt....." ".....The evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed. Goes much beyond the simple fact that, just one guilty person has gone unpunished, unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless....." ".....a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....."

46. Similarly in the case of State of Kerala v. M.M. Mathew , the Supreme Court has observed that ".....it is true that courts of law have to judge the evidence before them by applying the well recognised test of basic human probabilities...." ".....prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case....."

Therefore, we do not find this is a case where the appellant-accused has been falsely implicated by superior officers of his own department at the behest of local M.P. or that the prosecutrix consented for the sexual intercourse with the appellant-accused.

47. Therefore, after giving our anxious consideration to the evidence on record and the attending circumstances, we have no hesitation to hold that the learned Special Judge was justified in arriving at a conclusion that the appellant-accused is guilty of having committed an offence under Section 379 of I.P.C. and the Atrocities Act as the prosecutrix was a lady belonging to caste 'Varli' which is recognised as Scheduled Tribe.

48. Now we turn our attention on the point of sentence. The Union of India has preferred an appeal for enhancement of sentence in the matter. Mr. Agarwal, the learned counsel appearing for the Union of India submitted that the special Court has found the appellant-accused guilty for having committed offence under Section 376 of I.P.C. and so also under Section 3(1)(xi)(xii) of the Act but have imposed minimum sentence. Mr. Agarwal submitted that the appellant accused was well aware that he is a police constable and if the police officer commits offence under Section 376 of I.P.C., the minimum sentence provided is that of 10 years as the appellant-accused has committed rape within the limits of Silvassa police station where he was appointed and, therefore, Sub-section (2) Clause A-1 of Section 376 would be attracted which provided rigorous imprisonment for a term which should not be less than 10 years and which may be for life and shall also be liable for fine. In this case though the learned Special Judge has considered this aspect but instead of imposing minimum sentence prescribed by law, the learned special judge has observed that here one cannot loose the sight of facts that the period of seven years have been passed since the time of incident and it is a hanging sword on the appellant-accused for all the time and he is also under suspension. Under the circumstances, the rigorous Imprisonment for seven years with fine of Rs. 1000/- would be sufficient to meet the ends of justice, which according to Mr. Agarwal cannot be mitigating circumstance. Mr. Agarwal has drawn our attention to a decision rendered by three Judges Bench of the Supreme Court in the case of State of Andhra Pradesh v. Polamala Raju & Rajarao wherein it has been observed as under:-

"Normal sentence under Section 376(2) IPC in a case where rape is committed on a child below 12 years of age, is not less than 10 years R.I. an expression which is pre-emptory in nature. The Courts are obliged to respect this legislative mandate when the case falls under the proviso. The proviso to Section 376(2), IPC, however lays down that in exceptional cases, "for special and adequate reasons", sentence of less than 10 years R.I., may also be awarded in a given case. The proviso, would come into play only when there are "adequate and special reasons, available in a case. Those reasons need to be disclosed in the order/judgment itself so that the appellate forum is in a position to know as to what weighed with the Court in awarding a sentence less than the minimum prescribed under the Act.

In the instant case the High Court in appeal reduced sentence from minimum of 10 years by an order which contains no reasons much less "special or adequate reasons". The sentence has been reduced in a rather mechanical manner without proper application of mind. It appeared that the provisions of Section 376(2), IPC were not at all present to the mind of the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the prescribed minimum on the respondent. To show mercy in a case like this, would be travesty of justice. There are no reasons, much less sufficient and adequate reasons available on the record to impose a lesser sentence than the prescribed minimum. The plea that because of long time which has elapsed subsequent to the date of offence and the possibility that the prosecutrix, as also the accused may have got married and settled in life during the pendency of these proceedings, fine instead of sentence be imposed, cannot be countenanced. These factors may be relevant for consideration by the executive or Constitutional authorities, if they chose to remit the sentence on being so approached but in so far as judicial conscience is concerned, there is no reason to go against the legislative mandate and award any lesser sentence.

It is an obligation of the sentencing Court to consider all relevant facts and circumstances being on the question of sentence and impose a sentence commensurate with the gravity of the offence. The sentencing Court must hear the loud cry for justice by the society and more particularly, in cases of heinous crime of rape of innocent helpless children, as in this case, of the victim of crime and respond by imposing a proper sentence."

According to Mr. Agarwal, this Court should enhance the sentence to not only the minimum but the sentence should also have deterrent effect and therefore, he seeks that the appellant-accused be sentenced to suffer imprisonment for life. Mr. Agarwal submitted that there is public outcry to impose death penalty for rapist and in the peculiar facts and circumstances of this case where the police officer is involved, the Court should deal with the matter with stern hand as the very purpose and object of providing protect on to hapless victim from police brutality and atrocities, the legislature thought it fit to carve out a special category in respect of police officer and provided for a minimum sentence of 10 years. According to Mr. Agarwal, this is a fit case where the sentence should he enhanced on both counts i.e. imprisonment and fine so that the victim can be compensated.

49. The learned counsel appearing for the appellant-accused submitted that the appellant-accused has suffered a log having lost his job and has already undergone most part of the sentence he has got three daughters and a son and he has to support his family and the sentence imposed by the special court is just and proper. It is submitted that the appellant-accused probably took liberty with the victim and being in a vulnerable position in the company of lady, must have fallen for her. The learned counsel for the appellant-accused submitted that the Court may increase the fine amount to compensate the victim rather than increasing the sentence which would meet the ends of justice.

50. In so far as the sentencing policy is concerned which is based on the principle of proportionality, the legislature has provided wide discretion to Magistrate and Judges by vesting limits of sentence for specific offence. The learned special judge was expected to award at least the minimum sentence on the same principles on the basis of which, the Magistrate or a Judge should be able to decide as to what would be the appropriate sentence in a given case. In our opinion, in order to ascertain as to what is the minimum sentence possible, the court should keep in mind the sentence for the offence prescribed by law, and then examine the case in an objective manner i.e. first of all to punish the accused for his crime; Secondly to mark the disapproval of the community for the heinious offence which the man has committed and thirdly, sufficient to act as a deterrent in future to this man and to anyone else who might be minded to commit this sort of crime or otherwise by abuse of authority in order to gratify their deviant sexual urges.

51. In the case of Kommarajula Narasaiah v. The State of Andhra Pradesh reported in (2000) 9 SCC 756 in which the Supreme Court while dealing with a case of rape observed that the reasons on the basis of which the sentence of seven years was reduced to five years have been set out by the Sessions Judge which indicate that he was impressed by the fact that the rape was committed not for lust alone but on account of other circumstances which are that his wife had abandoned him, perhaps, on account of P.w.1 developing illicit intimacy with his wife. But that should not have given him a cause to take away Swaroopa (prosecutrix) and commit a rape on her. It is a heinous crime and, therefore, for this reason alone the sentence could not have been reduced from seven years to five years. Section 376 in specific terms provides that the sentence shall not be less than seven years. The proviso which enables the Court to impose the sentence of less than seven years does not give arbitrary discretion to the Court to reduce the sentence on irrelevant grounds. In our opinion, the learned special judge fell into this error, though he was satisfied that the minimum sentence prescribed by law in case of the appellant-accused was of 10 years but he has reduced the same to seven years merely on the ground as stated in the judgment on the point of sentence.

52. We also find that the learned Judge has even overlooked one of the important aspects of the case i.e. victim was entitled for compensation having suffered emotional and psychological damage on being raped by police constable. We have already referred to the decision in the case of Chandraprakash K. Jain v. The State of Maharashtra (supra) in which the Supreme Court has deprecated the approach of the Court in dealing with the matters where the accused is a police officer and the victim is a hapless lady. The Court ought to have taken into consideration that the victim was a lady belonging to Varli Tribe which is recognised as Scheduled Tribe and in order to provide her compensation by imposing appropriate fine on the appellant-accused, which in our view, in this case is very meagre amount and no compensation to the victim has been awarded, therefore, we should also order compensation out of fine and also to be paid under Rules framed by the Union of India, Ministry of Welfare vide notification dated 31.3.1995 which is known as Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995 (for short "the Rules"), which provides that in case of outraging the modesty of a woman (Section 3(1)(xi) and sexual exploitation of a woman (Section 3(1)(xii) belonging to Scheduled Caste and Scheduled Tribe, the State should pay a sum of Rs. 50,000/- to each victim of the offence. Out of which 50% of amount may be paid after medical examination and remaining 50% to be paid at the conclusion of the trial. As given in the schedule, which provides the norms to award relief amount under Rule 12(4) of the said rules. Rule 12(4) of the said rules reads thus: "The District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall make arrangements for providing immediate relief in cash or in kind both to the victims of atrocity, their family members, dependents according to the scale as in the schedule annexed to those Rules (Annexure-I) read with Annexure-II). So immediate relief shall also include food, water, clothes, shelter, medical aid, transport facilities and other essential items necessary for human beings. In the present case, there is a serious lapse on the part of the District Magistrate and Executive Magistrate who investigated the offence but failed to provide compensation. The learned Special Judge should have awarded compensation by invoking powers vested in it by Sub-rule 7 of Rule 12 and ought to have directed the authorities by passing an order for making in full or part of the payment of relief or any other kind of assistance, as given in the schedule.

53. For the aforesaid reasons, we find that the appellant-accused deserves to be punished at least for the minimum sentence fixed by law for the offence in addition to fine. We are also of the view that the victim should be suitably compensated and for that purpose we propose to increase the amount of fine and also direct the District Magistrate, Silvassa to pay compensation for the rehabilitation of the victim who belongs to Scheduled Tribe as provided under the rules.

54. We confirm the findings of the Special Court that the appellant accused is guilty of having committed an offence under Section 376 of I.P.C. and sentence him to suffer R.I. for 10 years and to pay fine of Rs. 10,000/- i/d to undergo R.I. for two years.

55. We also confirm the conviction of the appellant accused for having committed offence under Section 3(i)(xi) and (xii) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 and sentence the appellant-accused to suffer imprisonment of three years and to pay fine of Rs. 5,000/- i/d to suffer R.I. for one year, on each count.

56. We order that the substantive sentences on all counts to run concurrently. The fine if paid, shall be paid as compensation to the prosecutrix.

57. We further direct the District Magistrate Dadra and Nagar Haveli, Silvassa to pay a sum of Rs. 50,000/- to the prosecutrix in accordance with the Rules within a period of four weeks from the date of passing of this order with interest at the rate of Rs. 9% p.a. from the date of the decision of the Special Judge till the amount is deposited in the post office Bank A/c. It will be open for the Union of India to recover the amount of interest from the District Magistrate or the Officers who are found to be responsible for not paying compensation to the victim for her rehabilitation under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Rules, 1995 otherwise, the victim could have received the money at the very first instance when she was medically examined and thereafter, on the date of the judgment of the case, so that the officers do not commit any such lapse in future. In so far as the amount of Rs. 50,000/- plus interest as directed to be paid under the said Rules, the same shall be deposited in the nearest post office by the District Magistrate by opening an account in the post office in the name of the victim. The account should be of such nature that the victim will not be able to withdraw this amount for the period of six years and that she would be entitled to withdraw monthly interest on the same i.e. under monthly income plan scheme.

58. the appeal filed by the appellant-accused stands dismissed and that the appeal filed by Union of India for enhancement of sentence stands allowed in the aforesaid terms and conditions.

59. Authenticated copy of this judgment be supplied to the learned counsel for the appellant-accused and the learned counsel appearing for the Union of India for compliance.