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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: CHANDRAPRAKASH KEWAL CHAND JAIN

DATE OF JUDGMENT18/01/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR  658            1990 SCR  (1) 115  1990 SCC  (1) 550        JT 1990 (1)    61  1990 SCALE  (1)33  CITATOR INFO :  R          1992 SC2004  (5)

ACT:     Indian   Evidence   Act--Sections  39,  114,   118   and 133--Victim of sex offence--Victim of crime--Court to evalu- ate  evidence  so as to protect rights of  women  extent  of corroboration  needed--Notion that except in rarest of  rare cases,  the evidence of the prosecutrix cannot  be  accepted unless corroborated in material particulars erroneous.     Indian Penal Code--Sections 376 and 342--Crime committed by  persons  in  authority--Police  officer--Court  to  give deterrent punishment.

HEADNOTE:     The respondent, a Sub-Inspector of police, was convicted under  section 376 of I.P.C. for having committed rape on  a young  newly married girl of 19 or 20 years of age,  by  the Additional Sessions Judge, Nagpur. 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 him. The State  feeling  ag- grieved  came up in appeal by special leave. While  allowing the  appeal  setting aside the order of the High  Court  and restoring that of the Trial Court, the Court,     HELD:  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  accepted 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 attache in the  evalua- tion of her evidence as in the case of any injured complain- ant or witness and no more. [123B-C]     What  is more 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 charge levelled by her. 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, it is proper to remove the notion, if it persists, that the testimony  of

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a woman who is a 116 victim of sexual violence must ordinarily be corroborated in material  particulars  except in the rarest of  rare  cases. [123C-D; 124B-C]     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 indignities in  different  forms, from  lewd remark 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  social norms. The standard of proof to be  expected  by the Court in such cases must take into account the tact that such  crimes  are generally committed on the  sly  and  very rarely  direct evidence of a person other than the  prosecu- trix is available. [124D-F]     Courts  must also realise that ordinarily a woman,  more so a young girl, will not stake her reputation by leveling a false  charge concerning her chastity. By our criminal  laws vide  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. [124F-H]     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 author- ity,  such as a police officer carries with him the  awe  of office  which  is bound to condition the  behaviour  of  his victim [125C-D]     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 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, therefore, evaluate her evidence in the above background. 117     Bharwada  Bhognibhai  Hirjibhai  v.  State  of  Gujarat, [1983] 3 SCR 280--relied upon.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 221 of 1986 etc.     From  the  Judgment  and Order dated  28.6.1985  of  the Bombay High Court in Crl. Appeal No. 215 of 1982.     S.B. Bhasme, Mrs. H. Wahi, A.S. Bhasme and A.M. Khanwil- kar for the Appellants.     V.D.  Misra,  J. Wad and Mrs. Aruna Matbur for  the  Re- spondents. The Judgment of.the Court was delivered by     AHMADI,  J. This appeal by special leave is  brought  by

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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,  I.P.C. 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, I.P.C. and sentenced the  respond- ent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000, in default to suffer rigorous imprisonment for 6 months. He was, however, acquitted of the charge under Section 342, I.P.C. 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 i.e. on  the  night  of 20th/12st  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. Ex. 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 Ex.  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 2.30 a.m. 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

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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 5.00 or 5.30 a.m. 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 Ex. 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  110/117 of the Bombay Police  Act.  He  was released on bail. He returned to the police station by about 5.00 p.m. 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

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the  commission of assault and rape on his wife by  the  re- spondent.  PW 14 recorded the same in the station  diary  at 6.35 p.m. 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, I.P.C. 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 (Ex.  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 110/117,  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, I.P.C.     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 Ex. 50 furnished by Mohmad  Shafi to  Inspector  Pathak  at 6.35 p.m.  constituted  the  First Information  Report and the subsequent  written  information Ex.  7 given at 8.30 p.m., 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 Ex. 50 did not unfold two successive  acts  of rape,  this was not a case where it would be safe to base  a

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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  v.  State of Gujarat, [1983] 3 SCR 280.  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

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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

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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, e.g. 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

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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

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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  Ex. 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  Ex. 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 Ex. 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

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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 110/117,  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 5.00 a.m. 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

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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  Ex.  67. The report of the  Assistant  Chemical Analyser,  Ex. 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 Ex.  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 Ex. 71,  cannot  cast

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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  1.30  p.m. i.e., 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 8.45 p.m. 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 8.45 p.m. 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 Ex. 50. That was skeleton informa- tion. That is why the need to record a detailed version  Ex. 7  was felt. Therefore, merely because the details  are  not set out in Ex. 50 it cannot be said that the prosecutrix had not narrated the details. We have treated Ex. 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

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Ex. 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  Ex. 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 Ex.  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. R.N.J.                                          Appeal   al- lowed. 134