State by the Public Prosecutor vs Amaldoss and Prameela

K.M. Nataragan, J.—The State represented by the Public Prosecutor has preferred this appeal challenging the legality and correctness of

the order of acquittal of both the accused, who were charged for offences under Ss. 3(1) and 7(1) of the Suppression of Immoral Traffic in

Women and Girls Act, by the learned IV Metropolitan Magistrate, Madras. The accused were tried for offences under Ss. 3(1) and 7(1) of the

Suppression of Immoral Traffic in Women and Girls Act (hereinafter referred to as the Act) on the allegation that the first accused, who is the

father of the second accused, being the occupier of the premises bearing door No. 8, Second Crescent Park Road, Gandhi Nagar. Adyar, was

keeping a brothel in the said premises and collected a sum of Rs. 1,000 from one Vasu for gain and mutual benefit for himself and his daughter, the

second accused, and allowed the second accused to offer her body for sexual intercourse for hire with the said Vasu in the bed-room in the said

premises and further, the second accused carried on prostitution by offering her body for sexual intercourse for hire. with the said Vasu, P.W. 1,

within the above premises, which is situated 200 meters from Rajah Muthiah High School and the Church, on 19th July, 1980 between 5:30 and 6

p.m., In support of the above charges, the prosecution examined P.Ws. 1 to 14. filed Exs. P1 to P17 and marked M.Os. 1 to 7.

The case of the prosecution as disclosed from the oral and documentary evidence can be briefly stated as follows:- P.W. 14, Assistant

Commissioner of Police, Anti-Vice Squad, on receipt of information that the premises bearing door No. 10 (new), Second Crescent Park Road,

Gandhi Nagar, Adyar is used for the purpose of prostitution by the first accused with the assistance of his daughter, the second accused, verified

the information on different dates and confirmed that the said premises is being used as a brothel. He collected further information that a sum of Rs.

1,000 was collected from every visitor for sexual intercourse with the second accused by the first accused for mutual benefit and gain of both. He

collected P.W. 1, a decoy witness, who is the manager of Singapore Lodge, Egmore. P.W. 1 agreed to assist P.W. 14 in the detection of the

case. P.W. 1 at 2 p.m., on 19th July, 1980 phoned up to the house of the accused and asked for a time for his visit to the said brothel house for

having sexual intercourse with the second accused. The reply was to the effect that P.W. 1 was asked to come near the petrol bunk near Adyar

and that they would pick him up in a car to the house. Thereafter P.W. 14 secured the presence of two witnesses, P.Ws. 2 and 9. He gave a sum

of Rs. 1,000, which consisted of 10 hundred-rupee notes, marked as M.O. I series, duly signed by P.W. 14, to P.W. 1. P.W. 14 asked P.W. 1

to give the amount to the first accused in the house for having sexual intercourse with the second accused. The mahazar Ex. P1 was prepared at

the Assistant Commissioner''s Office regarding the handing over of M.O. 1 series to P.W. 1 by P.W. 14. It was attested by P.Ws. 1, 2 and 9.

P.W. 14 also signed. After having made all arrangements, P,W.14 along with his party and P.W. 1 and witnesses went to the petrol bunk. P.W. 1

was sent in a separate car. while P.W. 14 and others followed in different motor vehicles. As already planned, P.W. 1 reached the petrol bunk at

Adyar, and telephoned to the accused''s house from there. At about 4.30 p.m. the accused sent a car bearing registration number PYP 9483 and

picked up P.W. 1 to the house of the accused. P.W. 14 and party followed the same and stood near the southern side of the junction of the first

and second road of Gandhi Nagar, Adyar. It was about 5:30 P.M. when P.W. 1 reached the house of the accused. Accused 1 and 2 were

present at the house. P.W. 1 introduced himself to the first accused as the person who had telephoned already and that he had come for having

intercourse with the second accused. So saying, he gave M.O. 1 series to the first accused. After receiving the same, the first accused asked P.W.

1 to go inside the room where the second accused was available. P.W. 1 went inside the said room and after taking to the second accused for

some time, had sexual intercourse with her. In the meantime, P.W. 14 sent for P.W. 3, Sarojini Rao, who is an educationalist and a member of the

social health organisation and secured her presence. Waiting for sometime after P.W. 1 went inside the house, P.W. 14 came to know of the

accommodation of the decoy witness in the house of the second accused. He prepared the grounds of belief, Ex. P14 since there was no time to

get warrant of search. He proceeded to house of the accused with his party. P.W. 14 tapped the bed room of P.W. 1. P.W. 1 opened the door.

P.W. 14 and party found P.W. 1 and the second accused in a half naked condition. P.W. 4 is a photographer and he attempted to take snap of

the situation. The second accused pushed aside the camera and it was struck up. Hence he could not take any snap. At that time, P.W. 1 was

wearing the jatty M.O. 2, while the second accused was wearing the skirt M.O. 3. P.W. 14 recovered M.Os. 2 and 3 and also the bet sheet

M.O. 4 under cover of mahazar Ex. P3. The first accused was not available at that time. About of an hour later, he came there. P.W. 1 identified

the first accused before P.W. 14 and party. P.W. 14 recovered nine hundred-rupee-notes from the first accused. In all those hundred-rupee-notes

the signature of P.W. 14 were found and that the number of the currency notes also tallied with the one already noted in the mahazar Ex. P1. After

coming to know from the first accused that he had given one hundred-rupee-note to the T.U.C.S. shop at Adyar for the purchase of whisky bottle

M.O. 5. M.O. 5 was seized under cover of mahazar Ex. P4 attested by the same witnesses. P.W. 14 directed the Inspector P.W. 13 to go and

seize the currency note from the said shop. Accordingly P.W. 13 went to the T.U.C.S. shop and seized one hundred-rupee-note under cover of

mahazar Ex. P13 attested by P.Ws. 10 and 11, employees of the shop, P.W. 14 arrested accused 1 and 2 on the same day at 7:30 p.m., and

brought them to the station at 8:15 p.m. He registered a case in Crime Nos. 637 and 638 of 1980 under S. 3(1) and 7(1) of the Act. He sent P

W.1 and the second accused for medical examination.

P.W. 6 is the Assistant Professor, Madras Medical College, Madras. He examined P.W. 1 on 20.7.1980 at 12:50 P.M. and issued the

certificate Ex. P7 to the effect that there is nothing to suggest that he is impotent, that there was no matting of the public hair and that there was no

injury on his private part. He has also taken the saliva and the blood of the individual on the requisition from the Assistant Commissioner. Ex. P9 is

the report of the Serologist to the effect that the salvia and the blood belong to the same B group. According to P.W. 6, the absence of smegma

suggests recent intercourse. P.W 8 Dr. Janaki, who is the Assistant Professor Forensic Medicina, Madras Medical College, Madras, examined the

second accused and issued the certificate Ex. P11. According to her, there was no recent injury to her private part and she took original swab and

sent for analysis. Ex. P12, Chemical Examiner''s report, is to the effect that he did not detect any semen on the swab. Ex. P2 is the trip sheet of the

car in which P.W. 14 and party traveled. Ex. P6 is the receipt for repairing the camera which was used by P.W. 4 for taking snap. Semen was

detected in M.O. 4 bed-sheet as per Chemical Examiner''s report and as per the Serologist''s report Ex. P15, the blood group is found as B group

which tallies with the blood group of P.W. 1 P.W. 14 after completing the investigation laid the charge-sheet against both the accused on

16.8.1980 under S. 3(1) of the Act against the first accused and under S. 7(1) of the Act against the second accused.

When the accused were examined with reference to the incriminating piece of evidence under S. 313, Crl. P.C., they denied totally the

prosecution evidence and also stated that this case has been foisted. The second accused would state that she was taken from her house to the

Commissioner''s office at about 1:30 p.m., as there was a petition against her and that she was sent out from the office only at about 10:30 p.m.

No witness was examined on the side of the accused.

The learned magistrate for the reasons assigned in his judgment acquitted both the accused holding that the prosecution has not proved the case

against them by satisfactory evidence. Aggrieved by the same, the State has preferred this appeal.

At the outset it may be noted that during the pendency of this appeal, the first accused died and as such, the charge against him abates. Now the

learned Government Advocate confines his argument in regard to the order of acquittal of the second accused. The learned Government Advocate

submitted that the reasons assigned by the trial magistrate for acquitting the accused are all unsound and unsustainable. It is further submitted that in

view of the evidence of P.W. 1, which is corroborated by the evidence of P.Ws. 3, 4, 13 and 14, the learned Magistrate ought to have convicted

both the accused. It is further submitted that the court below erred in thinking that the evidence of P.W. 1 is in the nature of accomplice and no

conviction can be had, while his evidence is fully corroborated by other acceptable evidence. Further, the learned Magistrate erred in holding that

the non-compliance of S. 15(2) of the Act is fatal and the non-examination of the Assistant Inspector General of Police throws considerable doubt

on the version of the prosecution. The magistrate is also thoroughly wrong in thinking that a single and isolated act of sexual intercourse is not

sufficient for conviction under S. 3(1) of the Act. The learned Government Advocate took me through the judgment of the court below and the

evidence on record and reiterated the above contentions.

According to the learned Government Advocate, P.W. 1 cannot be treated as accomplice witness; but he is only a decoy witness, and that the

court below erred in rejecting his evidence on the sole ground that he has given different addresses in regard to his residence. In fact he has pointed

out that P.W. 1 has only stated that he worked as a Manager in a lodge at Egmore and was residing at Whannels Road and there is no

contradiction in respect of his residential address. It is brought to my notice that though in chief-examination he has stated that he was the manager

at Singapore Lodge, Egmore, in his cross-examination it was elicited that he was residing at No. 172, Royapettah High Road, Madras and that he

can not say who is the owner of the property or the nature of the building. When he was examined by the Investigating officer he has stated that he

was residing at 9, Whannels Road, Egmore and even the letter which was received by him contained the same address. He also admitted that he

used to give information often to the Anti-Vice Squad. It was also elicited from cross-examination that it was the first occasion he went to the

house of accused 1 and 2 in order to have sexual intercourse with the second accused. Further, he has mentioned the name of the lodge where he

was working as the South India Lodge, in his 162 Statement. It was also pointed out that he was a witness in a prior case filed by the same

Investigating officer, P.W. 14, Mr. Krishnamurthi, under the Suppression of Immoral Traffic in Women and Girls Act as is evidenced by Ex. D2,

where he has given his address as the son of ''Raju'' and not ''Appu'' and his address is No. 10, Tippu Sahib Lane, Triplicane Main Road. That

was 12 days prior to this occurrence, namely, 7.7.1980. As such, it is clear that witness is capable of giving different addresses at different times

and he has no regard for truth It is also pointed out by the learned counsel for the respondents that though he has stated to the police that the Sub-

Inspector Ramachandran called him on the same day morning at 10 A.M., he now pleaded ignorance about the name of the Sub-Inspector, and

deposed that he did not know the name of the Sub-Inspector who called him. Though it is stated that when P.W. 4 attempted to take photo, the

second accused pushed the camera and the same was struck up and hence photo was not taken, this witness P.W. 1 has not referred to anything

in this respect in his evidence. Learned Government Advocate argued that this witness is not expected to know all these things and he can only say

about the part played by him and he need not give the entire occurrence. Such an argument cannot be accepted. In order find out whether he is

speaking the truth or not, it has to be seen whether he has given the correct version of the events which took place inside the house. The fact that

he figured as a mahazar witness in the previous case and now a decoy witness does not make any difference in view of the admitted fact that he is

an informant to the police regarding the cases under the Suppression of Immoral Traffic in Women and Girls Act. The investigating officer admitted

that P.W. 1 stated that he is an informant. In this connection the learned counsel for the respondents drew my attention to the decision of the

Supreme Court reported in Panalal Damodar Rathi Vs. State of Maharashtra, wherein it was held that a bribe giver is also an accomplice and the

evidence of the complainant is in no better position than accomplice and that corroboration in material particulars is necessary. As such he

admittedly being a decoy witness and his evidence being in the nature of accomplice, his evidence should be corroborated in respect of material

particulars and the learned magistrate has rightly not accepted the evidence of P.W. 1, on the ground that his evidence clearly establishes that he is

a witness obliged to police. Further, he is unreliable and there is absolutely nothing to interfere with the finding of the learned Magistrate as far as

the evidence of P.W. 1 is concerned. Coming to the evidence of P.Ws. 2, 10 and 11, it is seen that they turned hostile and hence it is not helpful to

the prosecution. As regards P.W. 3, the learned magistrate rejected her evidence on the ground that she herself has admitted that she was a

witness in similar cases for police from 1968. She has also asserted that the aim of her Association is to assist police to eradicate evils of such

matters. Her evidence is also contradictory to the evidence of P.W. 1. P.W. 1 has deposed that some work was going on and two or three

workers were working in the adjoining hall of the scene place, while P.W. 3 has denied the same and stated that she did not see anybody working

there. According to P.W. 3, when P.W. 4 photographer attempted to take photographs, the lense was broken, while the evidence of P.W. 4

photographer and the repairer of the camera, P.W. 5, is to the effect that the lense was not broken. The learned Magistrate relying on this portion

of the evidence of P.W. 3 observed that she is person who would say anything to help the police and that the trial Magistrate is not impressed with

her evidence. In this connection reliance was placed on the decision reported in Hira Lal Vs. The State of Haryana, wherein it was held that where

a person appears as prosecution witness four or five times in police cases pertaining to particular police witness, the evidence of such witness does

not carry any value. Relying on the above decision, the learned magistrate has held that P.Ws. 1 and 3 who are admittedly stock witnesses for

police and appeared in several cases do not deserve any credence. The learned Government Advocate submitted that P.W. 3 is aged about 72

years, that she is a respectable lady and that the reasons assigned by the court below for rejecting her evidence are not tenable. On going through

the evidence, I find that her evidence does not carry value. She has categorically stated that she has been a witness in many cases for Anti-Vice

Squad and vigilance cases in City Civil Court and also witness for police in such cases from 1968. She has also stated that she has assisted

mofussil police and used to be witness for C.l.D. police also and that she cannot say exactly as to the number of cases for which she was taken to

the Commissioner''s Office from her house. She has further admitted that the aim of the Association, namely, Cultural Organization for Social

Health in which she is a member, is to eradicate evils of such matters and her duty is also to eradicate such evils and as such her duty is to assist

police in such cases and give evidence. Further, when she was cross-examined, she has stated that after 5:30 P.M., everything was over and

thereafter at 6 O''Clock she and others left for Commissioner''s Office and by 6:30 P.M. they were in the commissioner''s office. It is her further

evidence that from the Commissioner''s Office she went to her house in police car. The learned counsel for the respondents drew my attention to

the fact that though she is a witness to Exs. P3 and P4, she has specifically stated that she does not know the contents of Exs. P3 and P4 and that

she does not know Tamil. It is also brought to my notice by the learned counsel for the respondents that though it is stated by P.W. 3 that by 5:30

P.M. everything was over and mahazar was prepared and seizure was completed and they left the scene place and reached the office of the

Deputy Commissioner at 6:30 P.M. it is seen that Ex. P3 was prepared at 6:35 P.M. at the scene place and Ex. P4 at 7 P.M. according to the

prosecution. It is seen from the evidence of P.Ws. 13 and 9 and the mahazar Ex. P13 that Ex. P13 mahazar was prepared at 7:30 P.M. at

T.U.C.S. Stores, Adyar and thereafter P.W. 13 returned to the scene house and thereafter they returned to the office. Relying on the

circumstances, the learned counsel for the respondents submitted that the evidence of P.W. 13 is highly contradictory to the case of the

prosecution and it leads us to conclude that she ( P.W. 3) is not speaking the truth. It is also brought to my notice that though she had stated that

was examined by the Assistant Commissioner at the scene place, the investigating Officer, namely, the Assistant Commissioner denied having

examined her at the scene place. Further, though she has now stated that she saw the first accused coming with liquor bottle and that she told the

same to the police, it was elicited from, the investigating Officer that she has not stated so. From these circumstances, it cannot be said that the

learned trial magistrate has not acted properly on the evidence of P.W. 3. I am of the opinion that he has rightly rejected her evidence. Reliance

was placed on the evidence of P.W. 9 who is an attester to Ex. P1 mahazar and who also accompanied the raiding party to the house of the

accused and attested the mahazar Ex. P4. It is elicited in cross-examination that he came to the office of the Assistant Commissioner at 3:15 or

3:30 P.M. and the amount of Rs. 1,000 was given to P.W. 1 at about 3:45 or 4 P.M. and Ex. P1 was prepared. But, on the other hand, Ex. P1

was prepared at about 2:30 P.M. at the office of the Assistant Commissioner P.W. 14. Thus, his evidence is contradictory to Ex. P1 to which he

has attested. Next it was pointed out that it is the positive evidence of this witness ( P.W. 9) who is the driver of the car which was lent by his

master to the Commissioner, that he was staying in the car in front of the yard of the house of the accused, near the front gate, for about 20

minutes, and when P.W. 1 entered into the house and till the police subsequently entered into the house, nobody either went inside the house or

came out of the house and that there is only one gate for the house. That portion of the evidence is contradictory to the case of the prosecution that

P.W. 1, immediately after entering the house, paid the amount of Rs. 1,000 to the first accused and after receipt of the money, he (first accused)

came out of the house to purchase whisky in T.U.C.S. Stores and after the police party entered into the house and were effecting raid, he came

subsequently with whisky bottle. As such, the evidence of P.W. 9 that he was present is highly improbable. Further, P.W. 9 is very definite in his

evidence that from the first accused M.O. 5 whisky bottle, M.O. 7 permit and Ex. P5 receipt for purchasing whisky were seized and nothing else

was seized from him. But it is the case of the prosecution that a sum of Rs. 900 was also seized from him. Though he has now stated in evidence

that he told the police that the first accused was not there when police came, P.W. 14 denied his version. His evidence that the Assistant

Commissioner took the first accused to the T.U.C.S. Stores is also contrary to the case of the prosecution. From all these circumstances, his

evidence was not accepted by the learned Magistrate and as such there is nothing to hold that the said reasoning is perverse or improbable.

Next it was argued by the learned Government Advocate that the Court below ought to have accepted the evidence of the investigating officers

and the police official as there is no motive alleged against them to reject their testimony. In this connection, he relied on the decision of the

Supreme Court reported in Gian Singh Vs. State of Punjab, wherein it is held as follows:--

Police officials cannot be discredited in a trap case merely because they are police officials, nor can other witnesses be rejected because on some

other occasion they have been witnesses for the prosecution in the past. Basically, the Court has to view the evidence in the light of the

probabilities and the intrinsic credibility of those who testify.

On the otherhand, it is pointed out by the learned counsel for the respondents that in the instant case though P.W. 13 accompanied P.W. 14 during

the raid and he was deputed to seize the one-hundred-rupee-note from the T.U.C.S. Stores, Adyar, the 162-statement recorded from him was

admittedly not sent to court. Further suggestion has been put to P.W. 13 that the accused were taken to the Commissioner''s Office in connection

with petition and pressure. The second accused has also in her 313-statement stated that she was taken, on the representation that there was

petition against her, to the commissioner''s office at about 1:30 P.M. and later in the night she was allowed to go. It is further submitted by the

learned counsel for the respondents that the version given by P.W. 14 regarding the trap is falsified by the evidence of other witnesses. It was also

suggested to him that the mahazars were fabricated and further the timings given in the mahazar and the actual occurrence is quite different. He also

submitted that there is no proper investigation in this case and the driver of the car belonging to the accused which fetched P.W. 1 from the petrol

bunk was not arrested. There is absolutely nothing to show that he was examined. The car was also not seized. If really P.W. 4 was prevented

from taking photo, certainly there should be a complaint against the second accused for preventing P.W. 4 from discharging his lawful duty.

Further, the provisions of the Act relating to search have not been complied with. Though it is stated by P.W. 14 that after collecting information he

deployed his informant and Inspector to gather information on about the usage of the premises as brothel and that he also verified the information

different dates and confirmed that the said house was being used as a brothel, the Inspector P.W. 13 who investigated did not speak about that

and nothing was produced before court to substantiate the same. On the other hand, in cross-examination he has stated that he received

information 5 or 6 days prior to the raid and that he cannot say from the CD. when exactly he received the information. Yet he has stated that he

had verified it through many sources. As such, it cannot be said that any weight could be attached to the evidence of the investigating officers in this

case. Further, though P.W. 1 was available, he was not sent to the doctor on the same day for examination and he was actually sent on the next

day at about 12:50 P.M. If he was sent to the doctor on the same day, the doctor would have noted symptoms of sexual intercourse. Further the

semen of P.W. 1 and the second accused were not sent for comparison. The absence of semen on the clothes of P.W. 1 and the second accused

also falsifies the case of the prosecution that there was sexual intercourse between P.W. 1 and the second accused. The presence of semen in the

bed-sheet recovered from the house of the second accused would not in any way advance the case of the prosecution as there are many adult

persons residing in the said house. The room from where the bed-sheet was recovered was used as a bed room. There is nothing to show that the

semen group tallied with the semen group of P.W. 1 or the second accused.

Learned counsel for the respondents submitted that under S. 15(1)(2) of the Suppression of Immoral Traffic in Women and Girls Act, it is

obligatory on the part of the special police officer to call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the

locality in which the place to be searched is situate, to attend and witness the search. Even under the proviso, the ''locality witness'' is important as

far as the ''male'' is concerned. In the instant case, the mahazar witnesses P.Ws. 2, 3, and 9 are residents of Thiruvanmiyoor, T. Nagar and

Teynampet and they are not witnesses of the locality. It is also elicited in cross-examination of P.W. 14 that there are houses near the house of the

accused and that Adyar is a big residential area and particularly Gandhinagar is a residential area with more than 500 houses. P.W. 14 has stated

that he tried to contact the residents of Adyar, but he could not secure anyone. When he was further cross-examined, he could not say the

particulars of the persons who are residing in the adjoining houses. On the other hand, P.W. 9 has clearly stated that before ever the police party

came outside the house, the neighbours were brought and that their signatures were obtained in mahazars; particularly the owner of the opposite

house attested Exs. P3 and P4. It is also commented upon by the learned counsel for the respondents that there is absolutely no valid reason for

not obtaining the search warrant from magistrate for effecting search of the house of accused. The reason given by the investigating officer cannot

be accepted. According to the investigating officer, his office is adjacent to the Metropolitan Magistrate''s Court at Egmore and that it struck him to

get a warrant. But since he was not sure whether the decoy witness would accommodate or not, he did not get warrant. He has further stated that

he was not sure whether there was brothel. It is to be noted that since P.W. 14 was satisfied by himself by deploying his informant and Inspector

to gather information about the usage of the premises as brothel and he verified the information on different dates and confirmed that the said house

was being used as a brothel and he arranged for a trap by securing P.Ws. 1, 3, 4, 9 and others he ought to have obtained search warrant from

magistrate and the reason given by him that he was not sure whether the decoy witness will accommodate him cannot be accepted for not

obtaining search warrant. Reliance was placed on the decision reported in P. Damodaran, In re 1973 L. W. Crl. 23 where it was held that the

provision under S. 15(2) must be satisfied to make a search legal one. Unless the same is proved, the conviction under S. 4(1) cannot be imposed.

On the other hand, the learned Government Advocate submitted that it is only an illegality and it cannot vitiate the search, relying on the decision of

the Supreme Court reported in Bai Radha Vs. The State of Gujarat, wherein it was held that on account of the omission to record the reasons, the

trial is not vitiated and further the noncompliance of S. 15(1)(2) is only an irregularity and the trial is not vitiated unless it has caused prejudice. In

the instant case, the scene place is located in a residential locality and there are number of houses available and persons were also available and

some of them were working in the same premises and hence certainly the failure to obtain attestation from the neighbours would prejudice the case

of the accused especially when it is consented that nothing took place and that they were taken from the house on the petitions received against

them. In any event the failure to observe the procedure clearly shows that no reliance could be placed on the evidence of the investigating officer.

It is also commented upon by the lower court that Mr. A.I.G., was present at the time of raid and his non-examination throws considerable

doubt on the version of the prosecution. On the other hand, the learned Government Advocate submits that Mr. Jain was not a signatory to any of

the documents and as such, his non-examination would not in any way affect the case of the prosecution. But in the instant case it was brought to

my notice by the learned counsel for the respondents that Mr. Jain also played some part in the investigation as it is seen from the evidence of P.W.

3 that Mr. Jain, Deputy Commissioner, wanted to take photo, that the lady (namely, the second accused) pushed the camera and it fell down and

that the lense was broken. According to her, it was only the Deputy Commissioner, namely, Mr. Jain, contacted her over phone on 19th July,

1980. She has further stated that they saw a gentleman using whisky bottle and card board box and Mr. Jain, Deputy Commissioner, questioned

him. In the circumstances, the non-examination certainly throws considerable doubt on the version of the prosecution. I find some force in the said

contention also.

Next it was pointed out by the learned counsel for the respondents that under S. 3 of the Suppression of Immoral Traffic in Women and Girls

Act a single and isolated instance is not sufficient, relying on the decision of this Court reported in P.K. Unni Kumar, In re 1973 L.W. Crl. 198 and

Dhanalakshmi, In re 1872 L. W. Crl. 122. Learned counsel for the respondents submits that under S. 2(f) of the Act, ''prostitution'' means the act

of a female offering her body for promiscuous sexual intercourse for hire. The word ''promiscuous'' means indiscriminate offering of body for sexual

intercourse and further under S. 2(a), brothel includes any house, etc., which is used for purposes of prostitution. Hence, prostitution per se is not

an offence. Indiscriminate offering of body alone is offence. In the instant case, the prosecution has not let in any evidence to show that the second

accused had offered her body for sexual intercourse with any other person except the fact that P.W. 1 had sexual intercourse with the second

accused. It is not the evidence of P.W. 1 also that he was visiting the second accused on prior occasions. On the other hand, it is his positive

evidence that for the first time, he went there and introduced himself as the person who talked over phone. As rightly observed by the learned

magistrate, the prosecution has not let in any evidence by examining the neighbours to prove the anticedents of the accused. On the other hand, the

learned Government Advocate relied on the decision of this Court reported in Krishnamurthy v. Public Prosecutor, Madras 1967 L. W. Crl. 59

where it was held that a single instance coupled with the surrounding circumstances is sufficient to establish that the premises is being used as a

brothel. It was pointed out that in the instant case P.W. 1 is only a stranger and the second accused allowed him to have sexual intercourse and

that the said circumstance is enough to satisfy the requirement. On the other hand, the learned counsel for the respondents submitted that there is

absolutely nothing to show that P.W. 1 had sexual intercourse with the second accused. P.W. 8 examined the second accused and issued the

certificate Ex. P11. She did not find any recent injuries to her private parts and she took the original swab and sent for analysis and no semen in

detected in the swab as is evidenced by Ex. P12 the report of the Chemical Examiner. It is to be noted that the second accused was examined

immediately after the occurrence, i.e., even at 8:45 P.M. on the same day she was examined by P.W. 8 soon after her arrival. The prosecution has

failed to establish that there was any intercourse between P.W. 1 and the second accused. P.W. 1 was examined by P.W. 6 on the next day.

According to him, the absence of smegma suggests the recent intercourse. In cross-examination, it was elicited that a person who washes the

genital organ will not have smegma and that the absence of smegma does not by itself show evidence of recent intercourse It is the case of the

prosecution that the second accused rushed to the adjacent bath room and washed her private part and dressed herself. It is contended by the

learned counsel for the respondents that the police party went there for the purpose of detecting the crime and to trap the woman and that it is

highly impossible that the police party allowed her to enter the bath room and wash her private part to destroy evidence. The version of the

prosecution is highly improbable. Reliance was placed on the presence of semen in the bed sheet. It is to be noted that there is no semen detected

on M.Os. 2 and 3, clothes worn by the second accused as well as P.W. 1 at the time of the occurrence. As already pointed out, the presence of

semen in the bed sheet does not advance the case of the prosecution as it was not conclusively proved that the semen found there tallied with the,

semen of the second accused or P.W. 1. It is also pointed out that even in Ex. P3 mahazar there is no indication that the bed sheet was wet or it

contained any seminal stain. Admittedly the semen of P.W. 1 and the second accused were not sent for comparison. It is also not established that

the blood group and the semen group would be the same. As such, even in respect of the single act there is no acceptable evidence on the side of

the prosecution that P.W. 1 and the second accused had intercourse on that day.

Next it was contended by the learned counsel for the respondents that in the instant case no first information report was marked and is made

available to the accused to find out the truth or otherwise. According to him, originally the investigating agency was called Vigilance Cell and

subsequently it has been changed into Anti Vice Squad and there is no Government Order for the change of the nomenclature. On the other hand,

the learned Government Advocate produced a copy of the letter, dated 10th August, 1977 in reference No. 80877/GA.3/76-1 from the Secretary

to Government, Social Welfare Department, Madras-9, to the Commissioner of Police, Madras, wherein it was observed that the Government

after careful consideration accept the suggestion of the Commissioner of Police and direct that the nomenclature of the ''City Vigilance Unit'' of the

Madras City Police entrusted with the task of enforcing the Suppression of Immoral Traffic in Women and Children Act shall be changed into Anti

Vice Squad, Madras City Police. In view of the above letter, the absence of any Government Order is of no consequence. Next it was contended

by the learned counsel for the respondents that the Anti Vice Squad has not been declared as a police station as it is absolutely necessary for

registering the complaint. In this case, the prosecution has not produced the first information report and a copy was not given to the accused.

According to the learned counsel for the respondents, a case ought to have been registered at the Adyar Police Station which has the jurisdiction.

Anti-Vice Squad is not a police station, and the evidence of the investigating officer that the same was registered at the Squad is not tenable.

Learned counsel for the respondents drew my attention to S. 2(s) of the Code of Criminal Procedure, wherein ''police station'' is defined. ""Police

station"" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area

specified by the State Government in this behalf. There is absolutely nothing to show that Anti-Vice Squad was declared as police station by the

State Government. Under S. 154 , Crl. P.C., it is provided ''Every information relating to the commission of a cognizable offence, if given orally to

an officer in charge of a police station, shall be reduced to writing by him.... "" As such, only the officer in charge of the police station is competent

to register a case under S. 154, Code of Criminal Procedure Even S. 173, Crl. P.C., under sub Cl.(2)(i), it is provided that as soon as

investigation is competent, the officer in charge of the police station shall forward to a magistrate empowered to take cognisance of the offence on

a police report, a report in the form prescribed by the State Government. Under S. 36, Crl. P.C., it is provided that police officers superior in rank

to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed as may be

exercised by such officer within the limits of his station. It is also brought to my notice that in respect of similar cases under the Suppression of

immoral Traffic in Women and Girls Act, first information reports were registered in the concerned police station. In C.C. No. 4457 of 1985 under

Crime numbers 1534 and 1535 of 1985, cases were registered in J-1 police station under S. 4(1) of the Suppression of Immoral Traffic in women

and Girls Act. Similarly in R-1 Mambalam police station Crl. No. 8 of 1984 was registered. P.W. 14 has also admitted in his evidence that J-2

Adyar police station is 2-1/2 furlongs from the house of the accused and that he did not take the accused to J-2 police station to register a case.

The failure to register a case in the police station at the earliest point of time, even if it does not vitiate the proceedings, throws considerable doubt

on the investigation done by P.W. 14 and the accused are prejudiced by not getting any earliest report in the case to challenge the evidence of the

material witnesses. It is also pointed out by the learned counsel for the respondents that under S. 13 of the Suppression of Immoral Traffic Women

and Girls Act, there shall be for each area to be specified by State Government in this behalf a special police officer appointed by or on behalf of

that Government for dealing with offences under this Act in that area and that the Special Police Officer shall not be below the rank of an Inspector

of Police. Special Police Officer has been defined under S. 2(i) of the Suppression of Immoral Traffic in Women and Girls Act as a police officer

appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act. According to

the learned counsel for the respondents, there is nothing to show that P.W. 14 was empowered under the provisions of the Act as a special police

officer. On the other hand, the learned Government Advocate produced G.O. Ms. No. 1496, Home dated 25.5.1959 whereby the Assistant

Commissioner of Police sanctioned in paragraph 2 of the G.O., shall be designated as Assistant Commissioner of Police (Vigilance) and he will

have jurisdiction throughout the City of Madras (Municipal limits). In view of the above I do not find any merit in the said contention.

Lastly it was urged by the learned counsel for the respondents that this is an appeal by the State against the judgment of acquittal of the

accused, that the trial magistrate, who tried the case, had the opportunity to see the witnesses and has given a finding that he is not impressed with

their evidence or that they are speaking the truth, that the said view cannot be said to be not possible on the evidence and that even if two views

are possible on the evidence, this Court will not interfere with the order of acquittal. In this-connection, he drew my attention to the decision of the

Supreme Court reported in Ramji Surjya Padvi and Another Vs. State of Maharashtra, wherein it was held as follows:

While there is no doubt that the jurisdiction of an appellate court is co-extensive with that of the trial court, in the case of an appeal against a

judgment of acquittal, it cannot totally brush aside the appreciation of the evidence by the trial court. The reasons for reversing the judgment of

acquittal should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the trial

court, even if it is possible for it to take a different view after a process of laborious reasoning.

In State of Punjab Vs. Savitri Devi, it was held:

In an appeal against acquittal, the verdict of acquittal cannot be set aside merely on the ground that the High Court have a different view than the

one taken by the trial Judge. There have to be compelling reasons to set aside the judgment of acquittal. If two reasonable conclusions can be

reached on the basis of the evidence on record, then the view in support of the acquittal of the accused should be preferred.

Applying the ratio laid down in the above decisions and the consistent views expressed by the Supreme Court in catena of cases, unless this

Courts finds that the view taken by the trial court is unreasonable or perverse, the finding of acquittal should not be disturbed even if it is really of

the view that on the evidence different conclusion is possible. In view of the discussion already made, it cannot be said that the finding arrived at by

the trial magistrate is either perverse or unreasonable or that the reasons given by the court below are palpably and unerringly shaky. On the other

hand, he has given acceptable reasons for arriving at a finding of not guilty of the accused and there is absolutely nothing to interfere with the said

finding. For all these reasons, the order of acquittal passed by the court below is confirmed and this appeal fails and stands dismissed.