Criminal Appeal No 221 of 1986 etc
From the Judgment and Order dated 2861985 of the Bombay High Court in Crl
Appeal No 215 of 1982
SB Bhasme Mrs H Wahi AS Bhasme and AM Khanwil kar for the Appellants
VD Misra J Wad and Mrs Aruna Matbur for the Re spondents
The Judgment ofthe Court was delivered by AHMADI J
This appeal by special leave is brought by the State of Maharashtra against the judgment of acquittal recorded by the Nagpur Bench of the High Court of Bombay Maharashtra reversing the conviction of the respondent Chandraprakash Kewalchand Jain a Sub Inspector of Police under Section 376 IPC for having committed rape on Shamimbanu a girl aged about 19 or 20 years on 22nd August 1981
The learned Additional Sessions Judge Nagpur came to the conclusion that the prosecution had brought home the charge under Section 376 IPC and sentenced the respond ent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs1000 in default to suffer rigorous imprisonment for 6 months
He was however acquitted of the charge under Section 342 IPC The respondent challenged his conviction in appeal to the High Court
The High Court set aside the order of conviction and sentence imposed by the trial court and acquitted the respondent
The State feeling aggrieved sought special leave to appeal
On the same being granted this appeal is before us
Briefly the facts are that the parents of Shamimbanu were residing as tenants in a part of the building belonging to the father of Mohmad Shafi while the remaining portion was occupied by the owner s family
PW 1 Mohmad Shafi aged about 25 years fell in love with PW 2 Shamimbanu aged about 19 years
The prosecution case is that although the parents of both knew about their love affair for some reason or the other they were not married
Both of them left Nagpur and went to Bombay where they contracted a marriage 118 through a Kazi and returned to Nagpur by train on 20th August 198 1
They got down at Anjani Railway Station a suburb of Nagpur and went to a nearby Gurudeo Lodge and occupied Room No 204
That night ie on the night of 20th12st August 1981 PW 8 Police Sub Inspector Qureishi checked the hotel and learnt that the couple was living in the said room in the assumed names of Mohmad Shabbir and Sultana
On being questioned PW 1 Mohmad Shafi gave out the true facts and showed the Nikahnama
exhibit 10
On being satis fied about the correctness of the version Police Sub In spector qureishi got their correct names substituted in the register of the Lodge as is evident from the entry exhibit 31 proved by PW 5 Manohar Dhote the Manager of the Lodge
Police Sub Inspector Qureishi did not deem it necessary to take any steps against the couple
On the next night between 21st and 22nd August 1981 the respondent accused went to the hotel room No 204 occupied by the couple at the odd time of about 230 am and knocked on the door
He was accompanied by PW 7 Constable Chandrab han
When Mohmad Shafi opened the door the respondent ques tioned him on seeing Shamimbanu with him
Mohmad Shafi told him that she was his wife and gave their correct names
Notwithstanding their replies the respondent insisted that they accompany him to the police station
PW 5 requested the respondent to sign his visit book since he had inspected a few rooms of his Lodge including Room No 204 but the re spondent told him that he would do it later
So saying he left the Lodge with the couple
On reaching the police station the respondent separated the couple
He took Shamimbanu to the first floor of the police station while her husband Mohmad Shafi was taken to another room by PW 7
Shamimbanu alleges that after she was taken to the first floor the respondent flirted with her slapped her when she refused to respond to his flirtation and demanded that she spend the night with him
The respond ent also demanded that she should give her age as 15 years so that Mohmad Shafi could be booked
On her refusing and protesting against his behaviour he threatened her with dire consequences
In the other room Mohmad Shafi was subjected to beating by PW 7
After sometime both the boy and the girl were brought down to the main hall of the police station
By then it was around 500 or 530 am
Thereafter he sent Mohmad Shafi with a constable to fetch the girl s father
The girl s parents arrived at the police station shortly
The respondent asked the girl s parents if they were prepared to take 119 back the girl who claimed to have married Mohmad Shafi
The girl s parents showed annoyance and left the police station refusing to take her with them
Mohmad Shafi s parents also adopted the same attitude
The respondent then recorded an offence under Section 110 read with 117 of the Bombay Police Act against Mohmad Shafi on the allegation that he was found misbehaving on a public street uttering filthy abuses in front of Gujarat Lodge near Gurudeo Lodge
After putting Mohmad Shaft in the lock up he sent the girl Shamimbanu to Anand Mahal Hotel with PW 7
Initially PW 4 the Hotel Manager refused to give a room to an unescorted girl but PW 7 told him that he had brought her on the directive of the respondent
Thereupon PW 4 allotted Room No 36 to her
He made an entry in the hotel register to the effect Shamimbanu wife of Mohmad Shaft   as per instructions of Police Sub Inspector Shri Jain   vide exhibit 25
Afterleaving the girl in Room No 36 PW 7 left the hotel
It is the prosecution case that after the girl was allotted the room as per the usual practice the hotel boy changed the bed sheets pillow covers and quilt cover
The rent was charged from the girl
Having thus separated the couple and finding the girl thoroughly helpless the respondent visited the girl s room and knocked on the door
The unsuspecting Shamimbanu opened the door
The respondent entered the room and shut the door behind him
Thereafter he asked the girl to undress but on the girl refusing he forcibly removed her kurta  and threw it away
He gagged the girl s mouth and threatened her with dire consequences if she did not submit
He then threw the girl on the cot forcibly removed her salwar  and denuded her
He then had sexual intercourse with her notwithstand ing her protestations
After satisfying his lust the re spondent left threatening that he would bury both of them alive if she complained to anyone
He told her that he would now arrange to send back her husband
Not fully satisfied the respondent returned to the hotel room after about half an hour and knocked on the door
Shamimbanu opened the door thinking that her husband had returned
When she saw the respondent she tried to shut the door but the respondent forced his way into the room and shut the door from within
He once again had sexual inter course with her against her will
He repeated his threat before leaving
On the other hand Mohmad Shaft was sent to Court on his arrest 120 under Sections 110117 of the Bombay Police Act
He was released on bail
He returned to the police station by about 500 pm and enquired about the whereabouts of his wife
PW 7 told him she was in Room No 36 of Anand Mahal Hotel
He immediately went to his wife
On seeing him she was in tears
She narrated to him what she had gone through at the hands of the respondent
Enraged Mohmad Shaft went back to the police station and informed PW 14 Inspector Pathak about the commission of assault and rape on his wife by the re spondent
PW 14 recorded the same in the station diary at 635 pm and informed his superiors about the same presuma bly because a police officer was involved
Thereupon Deputy Commissioner of Police Parassis and Assistant Commissioner of Police Gupta arrived at the police station
The Assistant Commissioner of Police asked Inspector Pathak to accompany Mohmad Shafi and fetch Shamimbanu
On their return with Shamimbanu Mohmad Shaft was asked to give a written account of the incident which he did
On the basis thereof an of fence under section 376 IPC was registered and the investigation was entrusted to Inspector Korpe of Crime Branch
In the course of investigation a spot panchnama of Room No 36 was drawn up and certain articles such as bed sheet quilt cover mattress etc
which had semen like stains were attached
The hotel register containing the relevant entry exhibit 25 was also seized and statements of witnesses were recorded
Both the respondent and Shamimbanu were sent for medical examination and their blood samples were taken along with that of Mohmad Shafi to determine their blood groups
Similarly the garments of the respondent and Shamimbanu were attached and sent for chemical examination along with the articles seized from the hotel room
On the conclusion of the investigation the respondent was charge sheeted and put up for trial before the Additional Sessions Judge Nagpur
The respondent pleaded not guilty to the charge and denied the accusation made against him
His defence was that he arrested Mohmad Shaft on the charge under Sections 110117 Bombay Police Act and took him to Gurudeo Lodge and from there he took him and Shamimbanu to the police station
Since the parents of both the boy and the girl disowned them he had no alternative but to place Mohmad Shaft in the lock up and allow Shamimbanu to leave the police station as a free citizen since she was not accused of any crime
It was his say that after Shamimbanu left the police station she went to Anand Mahal Hotel and stayed in Room No 36 awaiting Mohmad Shafi
According to him as Mohmad Shaft was annoyed because of his detention in the 121 lock up he had with the assistance of Shamimbanu falsely involved him on the charge of rape
The trial court found that the respondent had visited Room No 204 at an odd hour and had taken the couple to the police station where he had misbehaved with the girl
It also found that he had booked the boy on a false charge and had lodged the girl in Room No 36 after their parents disowned them
It lastly held that the evidence of the prosecutrix clearly established that the respondent had raped her twice in that room
The trial court convicted the respondent under Section 376 IPC The respondent preferred an appeal to the High Court
A learned Single Judge of the High Court allowed the appeal and acquitted the respondent
The High Court took the view that the oral information exhibit 50 furnished by Mohmad Shafi to Inspector Pathak at 635 pm constituted the First Information Report and the subsequent written information exhibit 7 given at 830 pm was inadmissible in evidence as hit by Section 162 of the Code
The High Court then took the view that except in the rarest of the rare cases  where the testimony of the prosecutrix is found to be so trustworthy truthful and reliable that no corroboration is necessary the Court should ordinarily look for corroboration
Accord ing to it as exhibit 50 did not unfold two successive acts of rape this was not a case where it would be safe to base a conviction on the sole testimony of the prosecutrix more so because both the girl and the boy had reason to entertain a grudge against the respondent who had booked the latter
Lastly the High Court pointed out that the version of the prosecutrix is full of contradictions and is not corroborat ed by medical evidence in that the medical evidence re garding the examination of the prosecutrix is negative and does not show marks of violence
These contradictions and inconsistencies have been dealt with in paragraphs 24 to 31 of the judgment
The High Court also noticed certain infirm ities in the evidence of PW 1 Mohmad Shafi in paragraphs 32 to 34 of its judgment
The High Court therefore concluded that the prosecution had miserably failed to prove the guilt of the accused and accordingly acquitted him
It is against this order of the High Court that the State has preferred this appeal by special leave
The learned counsel for the appellant State submitted that the entire approach of the High Court in the matter of appreciation of evidence of the prosecution witnesses particularly PW 2 betrays total ignorance of the psychology of an Indian woman belonging to the 122 traditional orthodox society
He submitted that the prosecu tix of this case came from an orthodox muslim family was semi literate having studied upto the VII Standard and whose parents considered it a shame to take her back to their fold because she had eloped and married a boy of her own choice
He submitted that the statement of law in the High Court judgment that implicit reliance cannot be placed on a prose cutrix except in the rarest of rare cases runs counter to the law laid down by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat  He also submitted that the evidence of the prosecutrix has been rejected on unsustainable grounds which do not touch the substratum of the prosecution case and which can be at tributed to nervousness and passage of time
According to him this approach of the High Court has resulted in gross miscarriage of justice which this Court must correct in exercise of its jurisdiction under Article 136 of the Con stitution
The learned counsel for the respondent however supported the High Court judgment
It is necessary at tile outset to state what the ap proach of the Court should be while evaluating the prosecu tion evidence particularly the evidence of the prosecutrix in sex offences
Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix Let us see if the Evidence Act provides the clue
Under the said stat ute Evidence  means and includes all statements which the Court permits or requires to be made before it by witnesses in relation to the matters of fact under inquiry
Under Section 59 all facts except the contents of documents may be proved by oral evidence
Section 118 then tells us who may give oral evidence
According to that section all per sons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years extreme old age disease whether of body or mind or any other cause of the same kind
Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person and a convic tion is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice
However illus tration b to Section
114 which lays down a rule of practice says that the Court may  presume that an accom plice is unworthy of credit unless he is corroborated in material particulars
Thus under Section 133 which lays down a rule of law an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence 123 is not illegal although in view of Section 114 illustration b courts do not as a matter of practice do so and look for corroboration in material particulars
This is the conjoint effect of Sections 133 and 114 illustration b
A prosecutrix of a sex offence cannot be put on par with an accomplice
She is in fact a victim of the crime
The Evidence Act nowhere says that her evidence cannot be ac cepted unless it is corroborated in material particulars
She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence
The same degree of care and caution must attach in the evaluation of her evi dence as in the case of an injured complainant or witness and no more
What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her
If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix there is no rule of law or practice incorporat ed in the Evidence Act similar to illustration b to Sec tion 114 which requires it to look for corroboration
If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corrobo ration required in the case of an accomplice
The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circum stances of each case
But if a prosecutrix is an adult and of full understanding the Court is entitled to base a con viction on her evidence unless the same is shown to be infirm and not trustworthy
If the totality of the circum stances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged the Court should ordinarily have no hesitation in accepting her evidence
We have therefore no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accept ed
The degree of proof required must not be higher than is expected of an injured witness
For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy truthful and reliable that other corroboration may not be necessary
 124 With respect the law is not correctly stated
If we may say so it is just the reverse
Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence unless there are special circumstances which call for greater caution in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation
We think it proper having regard to the increase in the number of sex violation cases in the recent past particu larly cases of molestation and rape in custody to remove the notion if it persists that the testimony of a woman who is a victim of sexual violence must ordinarily be cor roborated in material particulars except in the rarest of rare cases
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 woman 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
Ours is a conservative society where it concerns sexual behaviour
Ours is not a permissive society as in some of the Western and European countries
Our standard of decency and morality in public life is not the same as in those countries
It is however unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing
An Indian woman is now required to suffer indigni ties in different forms from lewd remarks to eve teasing from molestation to rape
Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms
The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available
Courts must also realise that ordinarily a woman more so a young girl will not stake her reputation by levelling a false charge con cerning her chastity
But when such a crime is committed by a person in au thority eg a police officer should the Court s approach be the same as in any other case involving a private citi zen By our criminal laws wide powers are conferred on police officers investigating cognizable offences
The infrastructure of our criminal investigation system recog nises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agen cy
This is evident from the proviso to sub section 2 of Section 47 of the Code which obliges the police officer desiring to effect entry to give an opportunity to the 125 woman in occupation to withdraw from the building
So also subsection 2 of Section 53 requires that whenever a female accused is to be medically examined such examination must be under the supervision of a female medical practitioner
The proviso to Section 160 stipulates that whenever the presence of a woman is required as a witness the investigating offi cer will record her statement at her own residence
These are just a few provisions which reflect the concern of the legislature to prevent harassment and exploitation of women and preserve their dignity
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 backdrop 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 con duct evidence of the prosecutrix
A person in authority such as a police officer carries with him the 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 rela tives including her husband
Instead of treating her with compassion and understanding as one who is an injured victim of a 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 plight
The Court must there fore evaluate her evidence in the above background
It is time to recall the observations of this Court made not so far back in Bharwada Bhognibhai Hirjibhai supra In the Indian setting refusal to act on the testimony of a victim of sexual assaults in the absence of corroboration as a rule is adding insult to injury
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion To do so is to justify the charge of male chauvinism in a male domi nated society
We must analyse the argument in support of the need for corroboration and subject it to relentless and remoreseless cross examination
And we must do so with a logical and not an opinionated eye in the light of 126 probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon
We must not be swept off the feet by the approach made in the Western World which has its own social milieu is own social mores its own permissive values and its own code of life
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World
It is wholly unnecessary to import the said concept on a turn key basis and to transplate it on the Indian soil regardless of the altogether different atmos phere attitudes mores responses of the Indian Society and its profile
The identities of the two worlds are dif ferent
The solution of problems cannot therefore be identi cal
 Proceeding further this Court said Without the fear of making too wide a statement or of overstating the case it can be said that rarely will a girl or a woman in India make false allegations of sexual assault  
The statement is generally true in the context of the urban as also rural society
It is also by and large true in the context of the sophisticated not so sophisticated and unsophisticated society
Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites
Because 1 A girl or a woman in the tradition bound non permissive Socie ty of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred
2 She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members relatives friends and neighbours
3 She would have to brave the whole world
4 She would face the risk of losing the love and respect of her own husband and near relatives and of her matrimonial home and happiness being shattered
5 If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable of an acceptable family
6 It would almost inevitably and almost invariably result in mental torture and suffering to herself
7 The fear of being taunted by others will always haunt her
8 She would feel extremely embrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing 127 in a tradition bound society where by and large sex is taboo
9 The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy
10 The parents of an unmarried girl as also the husband and members of the hus band s family of a married woman would also more often than not want to avoid publicity on account of the fear of social stigma on the family name and family honour
11 The fear of the victim herself being considered to be promiscu ous or in some way responsible for the incident regardless of her innocence
12 The reluctance to face interrogation by the investigating agency to face the court to face the cross examination by Counsel for the culprit and the risk of being disbelieved acts as a deterrent
 We are in complete agreement with these observations
We now proceed to examine if the High Court was justi fied in upturning the order of conviction passed by the Trial Court
The High Court refused to confirm the convic tion of the respondent as it found the evidence of the prosecutrix full of contradictions and not consistent with medical evidence as well as the findings recorded by the Chemical Analyst
We may first indicate the contradictions which prompted the High Court to look for corroboration
They are i the version that the respondent had misbehaved with her in the police station and had molested her could not be believed because she did not complain about the same to the other police officers who were present in the police station main hall on the ground floor or to her relatives who were called to the police station ii the conduct of the respondent in calling her par ents and in giving them an opportunity to take her with them does not smack of an evil mind iii the evidence of the prosecutrix that the respondent was instrumental in lodging her in Anand Mahal Hotel room is not supported by any evidence iv the conduct of the prosecutrix in not informing and seeking assistance from the hotel management after the first incident and even after the second incident of rape in the hotel 128 room is unnatural and surprising v the find of semen stains on the salwar  and kurta  of the prosecutrix runs counter to her evidence that on both the occasions she was completely denuded before she was ravished vi the absence of marks of physical violence also runs counter to her version that when she tried to raise an alarm she was slapped by the respondent vii the evidence of PW 3 Dr Vijaya and the medical report exhibit 17 do not lend corroboration to the evidence of the prosecutrix that the respondent had sexual intercourse with her notwithstanding the resistence offered by her viii the report of the Assistant Chemical Analyst exhibit 71 shows that neither semen nor spermatozoa were detected from the vaginal smear and slides that were forwarded for analysis and ix the evidence of PW 12 Dr More and his report exhibit 41 shows that no physical injuries were found on the person of the respondent to indicate that he had forcible sexual intercourse shortly before his examination
Before we proceed to deal with these discrepancies we think it is necessary to clear the ground on the question whether the prosecutrix had a sufficiently strong motive to falsely involve the respondent and that too a police offi cer
It is possible that she may have felt annoyed at being dragged out of the hotel room at dead of night after they had satisfied Police Sub Inspector Qureishi that they were legally wedded only a few hours back
PW 1 may also have felt offended at being wrongly hooked under Sections 110117 Bombay Police Act
The question is whether on account of this annoyance both PW 1 Mohmad Shaft and PW 2 Shamimbanu would be prepared to stake the reputation of the latter As pointed out earlier ordinarily an Indian woman would be most reluctant to level false accusation of rape involving her own reputation unless she has a very strong bias or reason to do so
In the present case although the couple had reason to be annoyed with the conduct of the respondent the reason was not strong enough for Mohmad Shafi to involve his wife and soil her reputation nor for Shamimbanu to do so
An Indian woman attaches maximum impor 129 tance to her chastity and would not easily be a party to any move which would jeopardise her reputation and lower her in the esteem of others
There are therefore no such strong circumstances which would make the court view her evidence with suspicion
The next question is whether the High Court was justi fied in refusing to place reliance on her evidence in view of the discrepancies and inconsistencies indicated above
It is not in dispute that the respondent had taken both PW 1 and PW 2 to the police station at dead of night
At the police station both of them were separated
She was all alone with the respondent till about 500 am
This was her first encounter with the police
She must have been nervous and considerably shaken
She must have felt helpless as she was all alone
She must be terribly worried not only about her own fate but also that of her husband
It is during the time she was alone with the respondent that the latter is alleged to have misbehaved with her
How could she complain to the other police officers in the police station about the behaviour of their colleague unless she be sure of their response Having seen the behaviour of one of them how could she place confidence in others belonging to the same clan She may rather prefer to ignore such behaviour than speak of it to unknown persons
Ordinarily an Indian woman is ashamed to speak about such violations of her person more so to total strangers about whose response she is not sure
There was no point in speaking to her parents who had disowned her
She however claims to have informed her husband about the same on his return
The omission on the part of her husband to make a mention about the same cannot discredit her
Even if we assume that she omitted to mention it the said omission cannot weaken her evidence as obvious ly she would attach more importance to what happened there after in the hotel room
The respondent s behaviour in the police station had paled into insignificance in view of his subsequent misdeeds
No wonder she would attach greater importance to the subsequent events rather than dwell on advances made earlier
We therefore cannot agree with the High Court s observation that the prosecutrix is not only prone to make improvements and exaggerations but is also a liar disclosing a new story altogether to serve her inter est
This is a harsh comment which we think is totally unwarranted
The High Court has argued that the conduct of the respondent in sending for her parents and in permitting her to go with them shows that the respondent s intentions were not evil
In the first place it must be mentioned that the suggestion to call the parents came from PW 1 130 Secondly the evil thought may have taken concrete shape after the parents refused to take her with them
It was then that the respondents realised the helplessness of the girl and chalked out a plan to satisfy his lust
As a part of that design he falsely booked Mohmad Shaft and made arrange ments to lodge the girl in a hotel of his choice
The evi dence of PW 4 Suresh Trivedi read with the entry in the hotel register and the contradiction brought on record from his police statement leave no room for doubt that the girl was lodged in his hotel at the instance of the respondent
PW 6 and PW 7 have also resiled from their earlier versions to help the respondent
But notwithstanding their denial we see no reason to disbelieve Shamimbanu on the point of PW 7 having lodged her in Room No 36 of Anand Mahal Hotel as the same is corroborated not only by the remark in the entry Exh 25 of the hotel register but also by the fact that it was PW 7 who informed Mohmad Shaft that she was in Room No 36
We are therefore of the view that her evidence in this behalf is supported by not only oral but also documentary evidence
How then could she seek help or assistance from the hotel staff which was under the thumb of the respondent The hotel was situate within the jurisdiction of the re spondent s police station
It was at the behest of the respondent that she was kept in that room
She must have realised the futility of complaining to them
Failure to complain to the hotel staff in the above circumstances cannot be described as unnatural conduct
It is true that the prosecutrix had deposed that on both the occasions she was completely denuded before the respond ent raped her
On the first occasion he had removed her kurta  before she was laid on the cot
Her salwar  was removed while she was lying on the cot
Therefore the salwar  may be lying on the cot itself when the act was committed
It is therefore not at all surprising to find semen stains on the salwar 
She was wearing the same clothes when she was ravished the second time
On the second occasion he first threw her on the cot and then undressed her
Therefore both the kurta  and the salwar  may be lying on the cot at the time of sexual intercourse
Besides she had worn the same clothes without washing herself imme diately after the act on each occasion
It is therefore quite possible that her clothes were stained with semen
It must also be remembered that this is not a case where the prosecuting agency can be charged of having concocted evi dence since the respondent is a member of their own force
If at all the investigating agency would try to help the respondent
There is therefore nothing surprising that both these garments bore semen stains
Besides there was no time or occasion to manipulate semen stains on her clothes and that too of the respondent s 131 group
Her clothes were sent along with the other articles attached from Room No 36 for chemical analysis under the requisition exhibit 67
The report of the Assistant Chemical Analyser exhibit 69 shows that her clothes were stained with human blood and semen
The semen found on one of her gar ments and on the bed sheet attached from the room was of group A which is the group of the respondent vide exhibit 70
Of course the other articles viz the mattress and the underwear of the respondent bore no stains
On the contrary the find of semen tends corroboration if corroboration is at all needed to the version of the prosecutrix
The possi bility of the semen stains being of Mohmad Shaft is ruled out as his group was found to be B  and not A 
In the circumstances the absence of semen or spermatozoa in the vaginal smear and slides vide report exhibit 71 cannot cast doubts on the creditworthiness of the prosecutrix
The evidence of PW 3 Dr Vijaya Lele shows that she had taken the vaginal smear and the slides on 23rd August 1981 at about 130 pm ie almost after 24 hours
The witness says that spermatozoa can be found if the woman is examined within 12 hours after intercourse thereafter they may be found between 48 and 72 hours but in dead form
Shamimbanu may have washed herself by then
Therefore absence of sper matozoa cannot discredit her evidence
The absence of marks of physical violence on the prose cutrix is not surprising
According to her the respondent had slapped her and threatened her with dire consequences when she tried to resist him on both occasions
Since she was examined almost 24 hours after the event it would be too much to expect slap marks on her person
It is however true that according to PW 12 Dr More there were no marks of injury on the body of the respondent when he was examined on the 22nd itself at about 845 pm
While it is true that the version of the prosecutrix is that she had tried to resist him it must be realised that the respondent being a strong man was able to overpower her and take her by force
Be sides he was a man in authority in police uniform
The prosecutrix was alone and helpless
In the circumstances as pointed out earlier the resistance would be considerably dampened
But the evidence of PW 12 Dr More who examined the respondent on the 22nd at 845 pm reveals that he had noticed i absence of smegma around the glans penis and ii the frenum tortuous and edematous
indicative of the respondent having had sexual intercourse within the preced ing 24 hours
However absence of marks of violence and absence of matting of pubic hair led the witness to state that no definite opinion could be given whether or not the respondent had sexual intercourse in the last 24 hours
In cross examination an attempt was 132 made to show that smegma may be absent in a man with clean habits that the frenum may be edematous if there is fric tion with rough cloth and tortuousness of the frenum could be due to anything that causes swelling of the skin
The witness however said that he had not seen marks of itching thereby negativing the suggestion
Be that as it may the evidence of this witness does show that there was evidence suggesting the possibility of the respondent having had sexual intercourse within the preceding 24 hours although the witness could not hazard a definite opinion
Therefore the non committal opinion of this witness cannot be said to run counter to the evidence of the prosecutrix
It may be that the evidence as to resistence may have been overstated a tendency which is generally noticed in such cases arising out a fear of being misunderstood by the society
That is not to say that she was in any way a consenting party
She was the victim of brute force and the lust of the respond ent
PW 1 Mohmad Shafi s evidence is also brushed aside on account of so called contradictions set out in paragraphs 32 to 34 of the High Court Judgment
The first reason is the non disclosure of details in the first oral statement which was reduced to writing at exhibit 50
That was skeleton informa tion
That is why the need to record a detailed version exhibit 7 was felt
Therefore merely because the details are not set out in exhibit 50 it cannot be said that the prosecutrix had not narrated the details
We have treated exhibit 50 as FIR for deciding this case
The previous involvement of PW 1 in a couple of cases is not at all relevant because the decision of the case mainly rests on his wife s evidence
But even exhibit 50 shows that his wife had told him that the respondent had raped her
We therefore do not see how the evidence of PW 1 can be said to be unacceptable
The fact that the respondent had gone to Gurudeo Lodge at an odd hour and had taken the prosecutrix and her husband to the police station at dead of night is not disputed
The fact that the respondent refused to sign the police visit book of the Lodge though requested by the Manager PW 5 Manohar Dhote on the pretext that he was in a hurry and would sign it later which he never did speaks for itself
Then the respondent booked Md Shafi under a false charge and put him behind the bars thereby isolating the prosecu trix
We say that the charge was false not merely because it is so found on evidence but also because of the report exhibit 46 dated 21st September 1981 seeking withdrawal of prosecu tion for want of material to sustain the charge
Having successfully isolated the prosecutrix he sent her to Anand Mahal Hotel with PW 7 who lodged her in Room No 36
The respondent 133 therefore had planned the whole thing to satisfy his lust
The subsequent attempt on the part of the respondent to commit suicide on being prosecuted as evidenced by the FIR exhibit 56 betrays a guilty conscience
We are therefore of the opinion that if the prosecution evidence is appreciated in the correct perspective which we are afraid the High Court failed to do there can be no hesitation in concluding that the prosecution has succeeded in proving the respond ent s guilt
Unfortunately the High Court stigmatised the prosecutrix on a thoroughly erroneous appreciation of her evidence hereby adding to her woes
If the two views were reasonably possible we would have refrained from interfering with the High Court s order of acquittal
In our opinion the trial court had adopted a correct approach and had properly evaluated the evidence and the High Court was not justified in interfering with the trial court s order of conviction
On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens there is no room for sympathy or pity
The punishment must in such cases be exemplary
We therefore do not think we would be justified in reducing the sentence awarded by the trial court which is not harsh
In the result we allow this appeal set aside the order of the High Court acquitting the respondent and restore the order of conviction and sentence passed on the respondent by the trial court
The respondent will surrender forthwith and serve out his sentences in accordance with law
His bail bond will thereupon stand cancelled
Criminal Appeal No 220 of 1986
In view of the order passed in the State s appeal we need not pass separate orders in this appeal
The appeal will therefore stand disposed of in view of the order passed in the above appeal
RNJ Appeal al lowed


Summary:
The first respondent filed an election petition against the 1404 appellant on the grounds i that he committed the corrupt practice specified in section 1237 Of the Representation of the People Act 195I inasmuch as he had obtained the assistance of one P a member of the armed forces who had acted as his polling agent and ii that the nomination of one J had been improperly rejected by returning officer
The election tribunal held that the corrupt practice was not proved but that the nomination of J had been improperly rejected and consequently it declared the election of the appellant to be void
On appeal the High Court held that the nomination of J was not improperly rejected but that the corrupt practice alleged was established and dismissed the appeal
The High Court found that P had signed the form a pointing him as the appellant s polling agent and had presented it before the presiding officer that P was seen at the polling booth and that the scribe who wrote this form had also written the form by which the appellant had appointed another polling agent
From these circumstances the High Court drew the inference that the appellant had appointed P as his polling agent and had in fact signed the form in token of such appointment
With respect to the rejection of the nomination of J the High Court held that J was a voter in a different constituency and that he had failed to produce a copy of the electoral roll when he presented the nomination paper nor was it produced at the time of the scrutiny or within the time given by the returning officer and that consequently the nomination was properly rejected
Held that to establish that the appellant was guilty of the corrupt practice charged it was not sufficient to show that P had acted as his polling agent but it must also be proved that the appellant had appointed P as his polling agent
This fact the first respondent had failed to prove by any legal evidence
The facts and circumstances found by the High Court did not inevitably lead to the conclusion that the appellant had signed the form and hence such an inference could not be drawn
Held further that the nomination of J was not improperly rejected
Where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed by section 335 by the production of a copy of the electoral roll of that constituency or of the relevant part thereof or of a certified copy of the relevant entries thereof
In the present case there was failure on the part of J to comply with section 335 and his nomination was properly rejected under section 362b
The failure to comply with section 335 is not a defect of an unsubstantial character so as to attract the application Of section 364
When the statute requires specific facts to be proved in a specific way and it also provides for the consequences of non compliance with the said requirement the application of the penalty clause cannot be resisted on the ground that such application is based on a technical approach
jagan Nath vs jaswant Singh   Rattan 1405 Anmol Singh vs Atma Ram  and Pratap Singh vs Shri Krishna Gupta AIR 1956 SC 140 referred to
Mohan Reddy vs Neelagiri Muralidhar Rao AIR 1958 AP 485 not approved