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Rameez @ Ramish Ahmed vs The State Nct Of Delhi on 26 April, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 24th FEBRUARY, 2018
DECIDED ON : 26th APRIL, 2018

+ CRL.A. 781/2016

RAMEEZ @ RAMISH AHMED ….. Appellant
Through : Mr.Anurag Jain, Advocate with
Ms.Ayushi Sharma, Advocate.

versus

THE STATE NCT OF DELHI ….. Respondent
Through : Mr.Rajat Katyal, APP.

CORAM:
HON’BLE MR. JUSTICE S.P.GARG
HON’BLE MR. JUSTICE C.HARI SHANKAR

S.P.GARG, J.

1. Aggrieved by a judgment dated 03.12.2014 of learned
Addl. Sessions Judge in Sessions Case No.207/2013 arising out of FIR
No.22/2009 under Sections 376/506/323 IPC and Section 3 of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act
(in short ‘SC/ST Act’) PS Baniyadher whereby the appellant –
Rameez @ Ramish Ahmed was held guilty for committing offences
punishable under Sections 376/323/506 IPC and 3(2)(v) of the SC/ST
Act, the instant appeal has been preferred by him to challenge its

Crl.A.781/2016 Page 1 of 17
legality and correctness. By an order dated 09.12.2014, the appellant
was sentenced to undergo RI for life with fine `50,000/- for the
offence under Section 376 IPC read with Section 3(2)(v) of the SC/ST
Act; RI for one year with fine `5,000/- under Section 506 IPC and RI
for six months with fine `5,000/- under Section 323 IPC. The
sentences were to operate concurrently.

2. Shorn of details, the prosecution case as set up in the
charge-sheet was that on 24.04.2009 the prosecutrix ‘X’ (changed
name) aged around 10 years was present at their mango orchard at
village Naroli to look after it in the absence of her parents who had
gone to see her ‘mausi’ suffering from some ailment at village Khera.
The victim’s parents had taken the said mango orchard on contract
from Nanhe Mian, the appellant’s uncle. At about 01.00 p.m. the
appellant came at the tube-well installed in a nearby orchard on a
bicycle and enquired from the prosecutrix about her mother. ‘X’
informed that her mother had gone to Khera. The appellant
immediately forcibly dragged ‘X’ to the ‘kothri’ of the tube-well and
threatened to kill her if she raised alarm. Inside the ‘kothri’, rape was
committed on her person by the appellant. When her sister PW-2
(Rakhi) arrived at the spot to serve lunch, she did not find ‘X’ there.
She went to the ‘kothri’ and saw ‘X’ lying unconscious; her salwar
was away at some distance. On seeing it, Rakhi frightened; she
poured water on X’s face and brought her home. She immediately
informed her parents about the incident and they rushed home at
around 04.00 p.m. ‘X’ was taken by her parents to the police chowki
in the village to lodge complaint. The police did not register the

Crl.A.781/2016 Page 2 of 17
complaint. On the third day, they approached senior police officers at
Sambhal. On their intervention, complaint (Ex.PW-1/1) of victim’s
father came to be recorded. The investigation was carried out by PW-
14 (Sarvesh Kumar Mishara). On 08.05.2009 the victim along with
her mother and sister recorded their supplementary statements. Efforts
by the Investigating Officer to apprehend the appellant proved futile.
On 18.05.2009 clothes which the prosecutrix was wearing at the time
of occurrence were produced and seized by the Investigating Officer.
PW-15 (Brajesh Singh) took over further investigation on 19.05.2009.
In the meantime, the appellant surrendered before the Court and was
arrested. Statements of the witnesses conversant with the facts were
recorded. Various exhibits collected during investigation were sent
for examination to Forensic Science Laboratory and its report was
collected. Upon completion of investigation, a charge-sheet was filed
against the appellant for commission of the aforesaid offences before
the Court concerned.

3. By an order dated 18.11.2009, charge for the commission
of the above said offences was framed against the appellant by the
learned Addl. Sessions Judge, Court No.2, Moradabad; the appellant
pleaded not guilty to the charges and claimed trial. The prosecution
examined PW-1 (Badan Singh) before the said Court on 29.11.2011.
By an order dated 30.08.2013 in Transfer Petition (Crl.) No.387/2012
‘Badan Singh vs. Ramiz @ Ramish Ahamed Anr.’, the Hon’ble
Supreme Court transferred the case from the court of District and
Sessions Judge, Moradabad (U.P.) to the District Sessions Court,
Tis Hazari Courts, Delhi.

Crl.A.781/2016 Page 3 of 17

4. The prosecution examined fifteen witnesses in all
thereafter. In 313 Cr.P.C. statement, the appellant denied his
complicity in the crime and pleaded false implication; he did not
adduce any witness in defence. The Trial resulted in conviction as
mentioned previously. Being aggrieved and dissatisfied, the present
appeal has been preferred by the appellant.

5. We have heard the learned Addl. Public Prosecutor and
learned defence counsel Mr.Anurag Jain, Advocate and have
examined the file minutely.

6. Learned defence counsel urged that the Trial Court did
not appreciate the evidence in its true and proper perspective. Counsel
made a fervent effort to persuade that there is an obvious contradiction
between the evidence of witnesses including that of the victim which
should enure to the benefit of the appellant. According to him, at the
time of medical examination, no injuries were found on the victim’s
body. Vaginal smear of the prosecutrix did not have spermatozoa. As
per ossification test report (Ex.PW-5/A), X’s age was estimated 16
years. There was unexplained delay in sending victim’s clothes to
FSL. Moreover, her clothes were never produced in the court for
identification. The appellant’s blood or semen samples were not
collected. In the FSL report (Ex.PW-12/A), there was no mention of
any blood / semen group and it did not match with that of the
appellant. Counsel further urged that the delay in lodging the FIR has
remained unexplained. Identity of the perpetrator of the crime is
suspect as the appellant was not acquainted with the prosecutrix or her
family members prior to the occurrence, how he was named in the FIR

Crl.A.781/2016 Page 4 of 17
is not understandable. The Investigating Officer did not conduct any
Test Identification Proceedings. The prosecution witnesses have
given conflicting versions about the incident. No independent public
witness was associated at any stage of the investigation. Moreover,
appellant’s conviction with the aid of Section 3(2)(v) of the SC/ST
Act is flawed as its provisions are not attracted.

7. Learned Addl. Public Prosecutor urged that statement of
the prosecutrix aged around 10 years is sufficient to base conviction
without further corroboration. No valid reasons exist to disbelieve her
and her statement is worthy of credence.

8. Badan Singh – victim’s father had taken mango orchard
on contract from Nanhe Mian, appellant’s uncle who has since
expired. The appellant in 313 Cr.P.C. statement admitted that mango
orchard was taken on ‘contract’ by Badan Singh from his uncle late
Nanhe Mian. He further admitted that on the day of occurrence, he
had gone on a bicycle to his fields near the mango orchard. Denying
the incident of rape, he claimed that a scuffle had taken place with ‘X’
on his plucking mangoes. When he was in the process of getting
down the tree, ‘X’ noticed it and started abusing him. She even tried
to snatch mangoes plucked by him. On that, he slapped ‘X’ 2-3 times.
‘X’ in retaliation gave him beating with a broom. Thereafter, he came
back to his house. He further elaborated that X’s father was in
possession of the orchard on contract basis for the last 4-5 years prior
to the incident. Apparently, there is no denial of his presence at the
spot at the time of incident by the appellant.

Crl.A.781/2016 Page 5 of 17

9. The occurrence took place on 24.04.2009 at around 01.00
p.m. The victim’s parents who were away to village Khera were
immediately informed by the victim’s sister – Rakhi about the
incident. They rushed to the house and arrived at around 04.00 p.m.
Sincere attempt was made by the victim’s father to lodge FIR with the
local police immediately without any delay, however, the local police,
may be due to influence of the appellant or his relatives, did not
register the FIR. No proceedings whatsoever were conducted by the
local police; even the prosecutrix was not medically examined.
Victim’s father – PW-1 (Badan Singh) did not give up and approached
senior officers at Sambhal. On their intervention, the police
machinery came into motion. Badan Singh lodged written complaint
dated 27.04.2009 (Ex.PW-1/1). In the complaint, he gave graphic
details of the incident whereby her daughter ‘X’ aged around 10 years
was defiled by the appellant. He further informed that the appellant
after criminally intimidating ‘X’ committed rape upon her.
Apparently, there was no delay in reporting the incident to the police.
The delay (if any) was due to slackness of the local police in not
lodging the FIR despite being approached by the victim and her father.
The satisfactory explanation of delay is weighty enough to reject the
plea of false implication or vulnerability of the prosecution case.
Moreover, in sexual offences delay in lodging the FIR cannot be a
factor to discard the prosecution case.

10. Crucial testimony to infer the appellant’s guilt is that of
PW-4 (‘X’), the victim. In her court statement, she deposed that on
24.04.2009 she was present in the mango garden to look after it in the

Crl.A.781/2016 Page 6 of 17
absence of her parents who had gone to village Khera to enquire about
her Mausi’s illness. Identifying the appellant to be the offender, she
further stated that he came on a cycle and enquired her about her
parents. When she informed that her parents were away to village
Khera, the appellant dragged her to a ‘Kothri’ in the garden; forcibly
removed her clothes and committed rape upon her; she was also
criminally intimated and injured on her back with a ‘khurpi’ several
times. After the crime, the appellant fled the spot leaving her
unconscious. The victim further stated that soon thereafter, her sister
Rakhi came there and brought her home. Rakhi apprised her parents
and they rushed home at 4.00 p.m. She also narrated her ordeal to her
parents and they took her to the police station Naroli. However, their
complaint was not lodged and the written complaint was torn by the
police officials. Her parents thereafter took her to senior police
officers at district Sambhal, (UP) and thereafter her statement was
recorded and she was medically examined. She further disclosed that
she belonged to ‘Jaatav’ caste. She had handed over her clothes i.e.
salwar and kameez which she was wearing at the time of commission
of the offence to the police. In the cross-examination, she informed
that she was a student of Vth standard that time. She explained that
though she was regular but on the day of incident, she had gone to the
mango garden due to her parents’ visit to her Mausi’s house. She
further elaborated that it was Friday that day and workers in the
nearby field had gone to offer ‘namaz’ in the mosque. She denied that
a scuffle had taken place between the two on appellant’s plucking
mangoes from the garden and she had assaulted and abused him. She

Crl.A.781/2016 Page 7 of 17
denied that a false case was lodged to claim compensation from the
government. On scrutinizing the testimony of the prosecutrix in its
entirety, it reveals that despite searching cross-examination, no
infirmity could be extracted to disbelieve her version. The appellant
did not deny his presence at the spot at the time of occurrence. The
material facts deposed by the victim remained unchallenged and
unrebutted in the cross-examination. No ulterior motive was assigned
or attributed to the child witness to make a false statement. In the
absence of any prior animosity or ill-will, the prosecutrix who had no
acquaintance or familiarity with the accused and knew him only due to
his being resident of the village is not imaged to level serious false
allegations of rape. It is highly unbelievable that to get petty amount
of compensation, ‘X’, a girl of self-respect and dignity and who is
conscious of her chastity having expectation of married life would
accuse falsely against any other person of rape, sacrificing thereby her
chastity. It is inconceivable that victim’s parents make their daughter
of tender age a pawn to claim compensation. Evidence of the victim of
sexual assault has great probative force. It is highly unexpected that
the victim, a minor, would pick up a quarrel with the appellant, a
grown up man, over plucking of mangoes, as alleged.

11. PW-2 (Rakhi), the victim’s elder sister has corroborated
her version without any variation; her testimony is in consonance with
that of ‘X’. She deposed that on 24.04.2009, she had gone to serve
lunch to her sister ‘X’ at the mango garden. On reaching there, she
did not find ‘X’. Despite her giving a call, there was no response.
Then she went to the ‘kothri’ /small room in the garden and saw ‘X’

Crl.A.781/2016 Page 8 of 17
lying unconscious there; her salwar was lying at a distance. She
became frightened and poured water upon ‘X’s face. ‘X’ regained
some consciousness but was not able to walk. She assisted ‘X’ in
wearing her salwar and brought her home. She informed her parents
telephonically and they reached home after about two hours. Her
sister ‘X’ apprised her parents. She was taken to the police station but
her complaint was not registered. It could be registered only on the 3 rd
day of the incident after intervention of the senior police officers at
Sambhal. In the cross-examination, she clarified that on the day of
occurrence, they had not gone to school as their parents were away.
She further informed that ‘X’ was brought home within 10/15
minutes. She denied that no such incident of rape had taken place.

12. Again nothing material has emerged in the cross-
examination to suspect ‘X’s version of the incident. Her presence at
the crime spot is quite natural and probable as she as usual had taken
lunch for ‘X’. Since the perpetrator of the crime was not arrested at
the spot on her arriving there, her natural reaction was to bring the
prosecutrix home and inform her parents. On getting the information
about the incident, the victim’s parents rushed to the house and
immediately went to lodge the report with the police. Nothing was
suggested to her in the cross-examination if ‘X’ had picked up a
quarrel with the appellant over plucking of mangoes by him.

13. Similar is the testimony of PW-3 (Naina Devi), victim’s
mother. She deposed that on 24.04.2009 she and her husband had
gone to village Khera as her sister Saroj was ill there. On getting
information about the incident from her daughter Rakhi, they reached

Crl.A.781/2016 Page 9 of 17
back home at around 4.00 p.m. ‘X’ disclosed there that the appellant
had committed rape upon her. They immediately went to police
chowki to lodge report but the police refused to do it. On the 3 rd day,
she along with her husband, daughters Rakhi and ‘X’ went to Sambhal
to lodge their protest before the senior police officers. On their asking,
the statement of her husband and that of ‘X’ were recorded; ‘X’ was
got medically examined. She further informed that at Muradabad, the
appellant used to threaten her family members not to depose against
him or else they would face dire consequences. They were compelled
to move Hon’ble Supreme Court for transfer of the case to Delhi. In
the cross-examination, she disclosed that the mango orchard was taken
on ‘batai’ by her husband and it was with him for the last 21 years.
She further informed that they had taken ‘X’ to a private doctor in the
village after the incident and he had given some medicines. She
denied if in any quarrel over plucking of mangoes, the victim had
assaulted the appellant with a broom. PW-1 (Badan Singh) victim’s
father, too deposed similarly. In the cross-examination, he fairly
admitted that `25,000/- were given to him by the Government as
assistance. He denied if the case was falsely lodged to get
‘compensation’. Nothing material, thus, could be extracted in his
cross-examination.

14. It is true that the victim’s exact age could not be
ascertained during investigation. The prosecution placed reliance upon
the school record where ‘X’ had taken admission in Vth standard vide
admission No.8439. The prosecution examined PW-9 (Irfan) to prove
the relevant school records (Ex.PW-9/A and Ex.PW-9/B) where ‘X’s

Crl.A.781/2016 Page 10 of 17
date of birth was recorded as 18.06.1999. He admitted in the cross-
examination that he had no personal knowledge as to on the basis of
which documents, the said date of birth came to be recorded. He also
admitted that the record of the school first attended by the prosecutrix
was not brought by him. As per the school record, the victim was
aged around 10 years on the day of occurrence. During investigation,
ossification test to ascertain the age of the victim was conducted. As
per the ossification report (Ex.PW-5/A), her approximate age was
estimated 16 years. The huge gap in age in both the school record and
of ossification report has not been explained by the prosecution. No
credible document such as birth certificate etc. has come on record to
find out the exact age of the prosecutrix. Nevertheless, victim’s age is
immaterial as allegations against the appellant are that he committed
rape upon the prosecutrix forcibly without her consent.

15. It was urged by the learned counsel for the appellant that
no reliance can be placed on ‘X’s statement and it cannot be acted
upon as initially in her statement to the police, she did not disclose
commission of rape and in the supplementary statement making
apparent, she implicated the appellant for commission of rape. It was
emphatically contended that no injuries were noted on the private parts
of the prosecutrix at the time of her medical examination. As per FSL
report even spermatozoa was not found in the vaginal smear.

16. This Court finds no valid reasons to disbelieve the
testimony of the prosecutrix merely because no injuries were found on
her body at the time of her medical examination. Relevant to note is
that soon after the occurrence, the police officials declined to register

Crl.A.781/2016 Page 11 of 17
the FIR and failed to medically examine her. Her medical
examination took place after about three days of the incident. Absence
of injuries on the private parts of the prosecutrix would not rule out
her being subjected to rape. It is quite possible to commit legally the
offence of rape without producing any injury to the genitals. To
constitute the offence of rape, it is not necessary that there should be
complete penetration and rupture of hymen. In law, slightest degree
of penetration is sufficient.

17. To corroborate ‘X’s ocular version, the prosecution also
relied upon FSL report (Ex.PW-12/A) where on exhibit-1 i.e. salwar,
human semen was found; it also contained sperms. Blood stains were
there on both Ex.-1 (Salwar) and Ex.-2 (Kurta). It is pertinent to note
that the victim’s wearing clothes were sent to Forensic Science
Laboratory for examination. However, despite efforts by the Court
below, the case property i.e. victim’s clothes could not be produced
during trial. Finally, it was found that these clothes could lost and an
FIR under Section 409 IPC was registered at Police Station
Baniyadher, U.P. It shows the slackness and carelessness of the
concerned police officials in the investigation of the case; its benefit,
however, cannot be given to the appellant. The trial court has noted
various deficiencies in the investigation where seemingly the police
was hand in glove with the appellant. Initially, they declined to
register FIR. Subsequently, on the intervention of higher officer,
when they were compelled to lodge FIR, it was diluted and exact
version of the victim accusing the appellant for rape was not recorded.
Every defective investigation need not necessarily result in acquittal.

Crl.A.781/2016 Page 12 of 17

18. Undisputedly, the prosecutrix ‘X’ belonged to scheduled
caste community. PW-11 (Harish Chand Tripathi) has proved the
relevant record (Ex.PW-11/A, Ex.PW-11/B, Ex.PW-11/C
collectively} in this regard. ‘X’ caste/status is not in controversy.

19. Minor inconsistencies, discrepancies and improvements
highlighted by the appellant’s counsel are insignificant to discard the
version narrated by the prosecutrix without any material variation.
Settled position is that courts have to show greater responsibility when
trying an accused on charge of rape. In such cases, brand probabilities
are required to be examined and the courts are not to get swayed by
minor contradictions which are not of substantial character. The
evidence is required to be appreciated having regard to the back-
ground of the entire case and not in isolation. Any deficiency or
irregularity in investigation need not necessarily lead to rejection of
the case of the prosecution when it is otherwise proved. She is
consistent throughout and her testimony has been corroborated in all
material particulars by her sister. Non-joining of independent public
witnesses is not fatal to the prosecution case as the incident was not
witnessed by any such individual. Moreover, the appellant and his
family members exerted influence in the village where the occurrence
took place. The victim and her family members were allegedly
criminally intimidated and were forced to finally abandon the village
to settle in Delhi. In such an hostile atmosphere, no independent
public witness was expected to come in support of the victim from the
village.

Crl.A.781/2016 Page 13 of 17

20. The appellant’s conviction under Section 376/323/506
IPC based upon fair appreciation of evidence warrants no intervention
and is confirmed.

21. We do agree with the appellant’s contention that
conviction with the aid of Section 3 (2)(v) of the SC/ST Act cannot
be sustained. It is true that the prosecutrix belonged to SC
community. No credible evidence has, however, come on record that
the sexual assault upon the prosecutrix was due to the factum of her
belonging to Scheduled Caste or Scheduled Tribe. Under Section 3
(2)(v) of the Act, it is sine-qua-non to establish that the victim is a
person who belongs to Scheduled Caste or Scheduled Tribes and that
the offence under Indian Penal Code was committed against her on the
basis of such a person belonging to Scheduled Caste or Scheduled
Tribe. In the absence of such ingredients, no conviction under Section
3 (2)(v) of the Act arises.

22. In Asharfi vs. State of Uttar Pradesh MANU/SC/
1556/2017, (2018) 1 SCC 742, the Supreme Court observed as
under:-

“5. In respect of the offence Under Section 3(2)(v) of
the SC/ST Prevention of Atrocities Act, the Appellant had
been sentenced to life imprisonment. The gravamen of
Section 3(2)(v) of SC/ST Prevention of Atrocities Act is
that any offence, envisaged under Indian Penal Code
punishable with imprisonment for a term of ten years or
more, against a person belonging to Scheduled
Caste/Scheduled Tribe, should have been committed on
the ground that “such person is a member of a Scheduled

Crl.A.781/2016 Page 14 of 17
Caste or a Scheduled Tribe or such property belongs to
such member”. Prior to the Amendment Act 1 of 2016,
the words used in Section 3(2)(v) of the SC/ST Prevention
of Atrocities Act are “…… on the ground that such person
is a member of a Scheduled Caste or a Scheduled Tribe”.

6. Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act has now been amended by virtue of
Amendment Act 1 of 2016. By way of this amendment, the
words “……. on the ground that such person is a member
of a Scheduled Caste or a Scheduled Tribe” have been
substituted with the words “…….. knowing that such
person is a member of a Scheduled Caste or Scheduled
Tribe”. Therefore, if subsequent to 26.01.2016 (i.e. the
day on which the amendment came into effect), an
offence under Indian Penal Code which is punishable
with imprisonment for a term of ten years or more, is
committed upon a victim who belongs to SC/ST
community and the Accused person has knowledge that
such victim belongs to SC/ST community, then the charge
of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is
attracted. Thus, after the amendment, mere knowledge of
the Accused that the person upon whom the offence is
committed belongs to SC/ST community suffices to bring
home the charge Under Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act.

7. In the present case, unamended Section 3(2)(v) of
the SC/ST Prevention of Atrocities Act is applicable as
the occurrence was on the night of 8/9.12.1995. From the
unamended provisions of Section 3(2) (v) of the SC/ST
Prevention of Atrocities Act, it is clear that the statute
laid stress on the intention of the Accused in committing
such offence in order to belittle the person as he/she

Crl.A.781/2016 Page 15 of 17
belongs to Scheduled Caste or Scheduled Tribe
community.

8. The evidence and materials on record do not show
that the Appellant had committed rape on the victim on
the ground that she belonged to Scheduled Caste. Section
3(2)(v) of the SC/ST Prevention of Atrocities Act can be
pressed into service only if it is proved that the rape has
been committed on the ground that PW-3 Phoola Devi
belonged to Scheduled Caste community. In the absence
of evidence proving intention of the Appellant in
committing the offence upon PW-3-Phoola Devi only
because she belongs to Scheduled Caste community, the
conviction of the Appellant Under Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act cannot be sustained.

23. Resultantly the appellant’s conviction under Section 376
with the aid of Section 3 (2) (v) of SC/ST Act cannot be sustained.
The sentence order is modified and the appellant shall undergo
rigorous imprisonment for ten years with fine `1,00,000/- and failing
to pay it, the default sentence would be simple imprisonment for three
months under Section 376 IPC. He shall also undergo rigorous
imprisonment for one year with fine `10,000/-; in default to undergo
simple imprisonment for 15 days under Section 506 IPC. The
sentence under Section 323 IPC shall be simple imprisonment for one
month with fine `5,000/-; default sentence being simple imprisonment
for ten days. All the sentences shall run concurrently.

Crl.A.781/2016 Page 16 of 17

24. The appellant shall be entitled to the benefit under
Section 428 Cr.P.C. The period already undergone by him in custody
in this case shall be counted and set off against substantive sentence.

25. The appeal stands disposed of in the above terms.

26. Trial court record along with the copy of the order be sent
back forthwith.

27. Copy of the order be sent to concerned Superintendent
Jail for information.

(S.P.GARG)
JUDGE

(C.HARI SHANKAR)
JUDGE

APRIL 26, 2018 / tr/sa

Crl.A.781/2016 Page 17 of 17

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