Koshal, J. - (1.) This appeal by special leave is directed against the judgment dated the 12th Oct. 1976 of the High Court of Judicature at Bombauy (Nagpur Bench) reversing a judgment of acquittal of the two appellants of an offence under S. 376 read with S. 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st June 1974, and convicting Tukaram, appellant No. 1 of an offence under S. 354 of the Code and the second appellant names Ganpat of one under S. 376 thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years respectively.
(2.) Briefly stated, the prosecution case is this. Appellant No. 1, who is a Head Constable of police, was attached to the Desai Gunj police station in March 1972 and so was appellant No.2, who is a police constable. Mathura (P. W. 1) is the girl who is said to have been rap\ed. Her parents died when she was a child and she is living with her brother, Gama (P. W. 3) - Both of them worked as Labourers to earn a living. Mathura (P.W. 1) used to go the house of Nushi (P. W. 2) for work and during the course of her visits to that house, came into contact with Ashok, who was the sister's son of Nushi (P. W. 2) and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura (P. W. 1) decided to become husband and wife. On the 26th of March 1972, Gama (P. W. 3) lodged report Ex. P-8 at police station Desai Gunj alleging that Mathura (P. W. 1) had been kidnapped by Nushi (P. W. 2), her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao (P. W. 8) at whose instance all the three persons complained against as well as Mathura (P. W. 1) were brought to the police station at about 9 p. m. and who recorded the statements of the two lovers. By then it was about 10.30 p. m. and Baburao (P. W. 8) told them to go after giving them a direction that Gama (P. W. 3) shall bring a copy of the entry regarding the birth of Mathura (P. W. 1) recorded in the relevant register and himself left for his house as he had yet to take his evening meal. At that time the two appellants were present at the police station. After Baburao (P. W. 8) had gone away, Mathura (P. W. 1), Nushi (P. W. 2), Gama (P. W. 3) and Ashok started leaving the police station. The appellants, however, asked Mathura (P. W. 1) to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura (P. W. 1) into a latrine situated at the rear of the main building, loosened her under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura (P. W. 1) was and forrdled her private parts. He also wanted to rape her but was unable to do so for the reason that he was in a highly intoxicated condition. Nushi (P. W. 2) Gama (P. W. 3) and Ashok, who had been waiting outside the police station for Mathura (P. W. 1) grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nushi (P. W 2) shouted for Mathura (P. W. 1) there was no response. The noise attracted a crowd and some time later Tukaram appellant emerged from the rear of the police station and on an enquiry from Nushi (P. W. 2) stated that the girl had already left. He himself went out and shortly afterwards Mathura (P. W. 1) also emerged from the rear of the police station and informed Nushi (P. W. 2) and Gama. W. 3) that Ganpat had compelled her to undress herself and had raped her. Nushi (P. W. 2) took Mathura (P. W. 1) to Dr. Khune (P. W. 9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there. A few persons brought Head Gonstable Baburao (P. W. 8) from his house. He found that the crowd had grown restive and was threatening to beat Ganpat appellant and also to burn down the police station. Baburao (P. W. 8), however, was successful in persuading the crowd to disperse and thereafter took down the statement (Ex. 5) of Mathura (P. W. 1) which was registered as the first inormation report. Mathura (P. W. 1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of March 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girl's clothes and the pyjama which was taken off the person of Ganpat appellant.
(3.) The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". But he observed that "the farthest one can go into believing her and the corroborative cirecumstances, would be the conclusion that while at the Police Station, she had sexual intercourse and that, in all probability, this was with accused No. 2." He added however that there was a world of difference between "sexual intercourse" and "rape", and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed:"Finding Nushi angry and knowing that Nushi would suspect something fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why - this is a possibility - she might have invented the story of having been confined at the Police Station and raped by accused No. 2 Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastratkar, and accused No. 2 is no novice. He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his Pyjama with semen while having sexual intercourse with persons other thean Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him......... ....... ..... ......" and then concluded that the prosecution had failed to prove its case against the appellants.;