Allahabad High Court
Mani Raj Singh vs State Of U.P. on 17 October, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
CRIMINAL APPEAL NO. 3881 OF 2005
Mani Raj Singh Rathore son of Rishi Singh Rathore resident of village
B-2/36, Tourist Restaurant, P.s. Bhelupur, District Varanasi.
...Appellant
Versus.
State of Uttar Pradesh. ...Respondent
CONNECTED WITH:
CRIMINAL APPEAL NO. 4165 of 2005
Vinod Kumar Singh son of Triloki Singh, resident of village Rajpur, P.S. Haldi, District Ballia, at present resident of B-2/38 Tourst Guest House, Bhadaili, District Vararnasi.
....Appellant
versus
State of Uttar Pradesh. ....Respondent
Counsel for the appellants : Sri Ashok Mehta and Sri Brijesh Sahai
Counsel for the respondent: Sri R. A. Misra, AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Hon'ble Rakesh Tiwari, J.) We have heard Sri Ashok Mehta, learned counsel assisted by Sri Brijesh Sahai for the appellant, Sri R.A. Mishra, learned AGA for the State and perused the record.
2. The appellants in these two connected appeals have challenged the judgment and order dated 30.8.2005 passed by the Additional District Sessions Judge/Special Judge (E.C.Act) in S.T. No.65 of 2002 (State Vs. Mani Raj Singh and another) whereby, both the appellants have been convicted for the offence punishable under section 376 (2) (g) IPC and sentenced each of them to undergo imprisonment for life and fine of Rs.1 lac each with default stipulation.
3. The prosecution story in a nut shell is that a German lady (hereinafter referred to as the 'victim') was a visting tourist. A written report was submitted by her to the Officer-in-charge, Police Station Bhelupur, district Varanasi on 5.7.2001 at 8.20 p.m. alleging that she had come to India in the mid of March 2001. She had reached Varanasi via Agra on 3.7.2001 and stayed there in Room No.203 at the Tourist Rest House, Tulsighat; that the accused persons were making advances at her, since the time she had checked in the rest house. In the night of 3.7.2001 at about 11.00 p.m. she was offered LASSI by Mani Raj Singh, the owner of the tourist house and Vinod Kumar Singh, a tourist Guide. After drinking LASSI she became drowsy and she was taken to the roof of the Rest House by the aforesaid two persons where they forced themselves upon her to satisfy their lust. Thereafter, she was somehow able to go to her room and closed the door. The accused persons knocked at the door again and again asking her to repeat the carnal act but she did not open the door of her room. Yesterday also they made effort to have sex with her, but any how she could save herself. As soon as she got a chance in the next morning she left the rest house and shifted to Ajay Hotel situated at Lahuraveer, Varanasi.
4.On the basis of the written report dated 5.7.2001, check report was prepared and Case Crime No.90 of 2001 was registered in the G.D. under section 376 IPC, against the aforesaid two accused persons at Police Station Bhelupur (opposite Assi Ghat), Varanasi. The investigation was conducted by S.I. B.N. Tiwari. He interrogated the complainant, prepared the site plan and seized the register of the Tourist Rest House vide memo (Ex.Ka-9) in presence of public witnesses, wherein the victim had given details of herself as well as the time of arrival and departure from the rest house.
5.Medical examination of the victim was conducted by Dr. Mridula Mullick on 6.7.2001 in Women's Hospital, Varanasi. In her medical report she recorded that the victim was about 5 feet 5 Inch tall, weighed about 61 kgs. and had an average body built. Her secondary sexual character were well developed. No mark of injury was found on any part of her body. On internal Examination, no mark of injury was seen on her private parts. Hymen was old torn. Her vagina admitted 2 fingers easily and she was menstruating. Vaginal smear was taken which was sent for Patholoigcal examination of detection of spermatozoa. Since the victim had a change of clothes and undergarments, she was wearing at the time of incident, therefore, they could not be sealed after medical examination. Radiological examination of X-ray of right wrist joint, left knee joint and right elbow joint was advised for estimation of her age. In the supplementary report prepared on the basis of Pathological Report, vaginal smear was found negative for presence of spermatozoa but contaminated with blood. On the basis of Radiologist report the age of the victim was ascertained to be above 18 years.No definite opinion regarding rape could be given by the medical officer.
6.The victim's statement u/s 164 CrPC was recorded by the Additional Chief Judicial Magistrate-V, Varanasi on 6.7.2001, which reads as as under :
"I belong to German country. I came to India in 15th March 2001. Firstly, I went to Bombay, Banglore, Kerala, Agra then came to Varanasi on 3rd July 2001 and stayed at Tourist Guest House-Tulsi Ghat in Room No.203.
In the night of 3rd July at 11.00 p.m. onwer of Hotel Mani Raj Singh gave me Lassi with some intoxicant. I became confused and my heart fastely began to beat. I could not move, Mani Raj Singh kissed me and touched my body and breast.
Mani Raj Singh and Vinod Singh badly both raped with me on the top of roof one by one. They put off my whole clothes and naked me and both (sic) tried again and again sexual intercouse with me but any how I escaped. When I locked my room, they knocked my room again and again and tried for sexual intercourse. When I got chance, I left rest house and went to police station for information. I shifted to Hotel Ajay, Lahurabir.
Satement heard and verified.
Sd/- illegible 6.7.2001."
7. The investigation culminated in chargesheet against both the accused-appellants. After committal of the case to the Court of Session, the charge against the accused under Section 376 (2) (g) IPC was framed by the Additional Sessions Judge, Varanasi. The accused denied the charges and claimed trial.
8. The prosecution produced nine witnesses in support of its case namely, PW1 Dr. Mridula Mullick, PW 2 Devi Prasad Singh, PW 3 Umashankar Gangele, PW 4 I.B. Yadav, PW 5 Mohd. Ali, PW 6 Sanjay Sahai, PW 7 V.N.Tiwari, PW 8 S.D. Pandey and PW 9 the victim. Accused Mani Raj Singh and Vinod Kumar Singh were examined under section 313 Cr.P.C. They also produced five defence witnesses in support of their case namely, DW 1 Sri Atam Banerji, DW 2 Virendra Babu Singh, DW 3 Uma Shanker Gangele, DW 4 B.N. Tiwari and DW 5 Sri Mritunjai Singh.
9. On appreciation of oral and documentary evidence on record and hearing arguments of the counsel for the parties, the trial court vide its order dated 30.8.2005 held both accused Mani Raj Singh and Vinod Kumar Singh guilty of the offence under section 376(2)(g) IPC convicting and sentencing them for life imprisonment and fine as stated earlier.
10. Counsel for the appellants challenges the impugned judgment and order on the ground that the order of conviction is bad in law, as it is against the weight of evidence and the sentence is too severe. The appellants have not committed any offence, as alleged by the prosecution. The appellants Mani Raj Singh and Vinod Kumar Singh did not know each other as the later had never come to his rest house or met him ever prior to the said incident; that the appellants were not known to each other they had no motive to commit the crime together as alleged against them.
11. It is argued that Vinod Kumar Singh can not also be said to have been involved in the incident at all as he is said to have gone on the roof for 5-10 minutes. P.W. 6, Sanjay Sahai in his statement had specifically stated that the said accused had thereafter come back and hence could not have had any opportunity to violate the honour of the victim even if the case of the prosecution is taken on its face value. It is argued that the incident had not taken place in the manner as stated by the prosecution; that the accused were falsely implicated in the case by the management of Hotel Ajay because of business rivalry with Mani Raj Singh Rathore and their strained relations with Vinod Kumar Singh and that the victim had allowed herself to be taken advantage of the rival management against the two accused persons for the reasons best known to her. It is stated that the Investigating Officer had also not disclosed in his statement as to what was the intoxicating substance mixed in the Lassi alleged to have been given by the accused to the victim and therefore, there was no charge framed against the accused persons under section 328 IPC .
12. Learned counsel for the appellants submits that the victim claimed herself to be in a state of drowsiness allegedly on account of intoxicated LASSI offered to her to drink by the accused persons, therefore, she could not have identified any person who might have committed rape upon her much less the accused persons, who were innocent; that the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. can-not be relied being contrary to and against the record. These statements are therefore, not admissible; that FIR has been lodged after inordinate delay to implicate them by management of Hotel Ajay and the prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt.
13. He further emphasized that Atam Banerji was a German English Translator, who had been summoned by the Court on the request of the victim to help her during the cross-examination as she was unable to understand the questions put to her even though she had not submitted any application for providing the services of German-English Translator as such the trial Court had committed an error in law in providing aid of such a translator without any application moved by the victim.
14. The counsel for the appellants finally concludes that defence was not given proper opportunity to rebut the statement of the victim; that the case of the prosecution does not fall under section 375 of Explanation "fifthly" of I.P.C; that the FIR stands demolished in so far as the factum of alleged rape by the accused on the victim is concerned i.e., except going on the roof part which is no offence particularly in context of this fact that there is no supporting material regarding committing of rape by the accused with the victim and as such the appellants are liable to be acquitted or a lenient view in quantum of sentence may be taken by the court as the appellants have languished in jail from 10.7.2001 to 24.3.2001 and thereafter since 3.8.2005 after their conviction in the case i.e. for more than ten years for a crime they have not committed.
15. Learned AGA submits that offence committed by the accused under Section 376 (2) (g) IPC is fully proved beyond doubt on the basis of evidence on record as well as circumstantial evidence. That the appellants had known each other from before and had committed rape on the victim in the manner stated by the prosecution by forcing her to sexual intercourse under intoxication and without her consent.
16. The AGA has then placed the statements of both the accused under section 313 Cr.P.C. to establish that the two accused had known each other as they had worked in the group of Hotels run by Hotel Ajay whereas Mani Raj Singh worked in Hotel Buddha (a family hotel of Hotel Ajay ) up to the year 2001, Vinod Singh had also worked in Hotel Ajay at Lahurabir, Varanasi during the same period i.e. 2000-2001 and left thereafter. After which Mani Raj Singh started his own rest house. The relevant portion of deposition of Mani Raj Singh is as under:-
^^eSa VwfjLV jsLV gkml rqylh?kkV dk okjk.klh dk ekfyd o lapkyd gwWA eSus ;g jsLV gkml lu~ 2000 bZ- esa ykblsal ysus ds mijkar izkjEHk fd;kA blds iwoZ esa vt; gksVy ds QSfeyh gksVy gksVy cq)k esa dk;Z djrk Fkk vkSj viuk jsLV gkml izkjEHk djus ds ckn eSus gksVy cq)k esa dke NksM+ fn;kA gksVy vt; ds ikap gksVy gSaA gksVy vt;] gksVy xkSre] gksVy iq"ikatyh] gksVy cq)k ,oa gksVy lw;kZA nkSjku dk;Z VwfjLV jsLV vkml esa eSa cgqr dEiVhfVo jsV ij dke dj jgk Fkk] ftlls gekjs iwoZ ekfyd ds ;gka iSlsatj ¼xzkgd½ ugh tk jgs FksA ftlls mudks vkfFkZd {kfr gks jgh FkhA"
17. The statement of accused Vinod Singh given u/s 313 CrPC shows that he had also worked in Hotel Ajay. Therefore, the accused had known each other for long time. The relevant portion of the statement of accused Vinod Singh is as under:
^^fnukad 23-7-2000 rd mRrj jsyos okjk.klh esa Jh ;w- ih- falg iwM+h Bsyk] okjk.klh ds ;gka gsYij dk dke djrk FkkA esfMdy dk Nk;k izfr }kjk lhfu;j fMohtu esfMdy vkQhlj n- js- dh Nk;k izfr lkFk esa layXu gS vkSj tc izkFkhZ ds esfMdy dk uohuhdj.k ugh gqvk rks izkFkhZ us vt; gksVy ygqjkohj] okjk.kklh ds ;gka dqd dk dke vxLr 2000 esa eq0 4]000@:0 izfrekg ds nj ls dk;Z djus yxk vkSj 10 tuojh 2001 dks tc vt; gksVy ds ekfydku us izkFkhZ dh eq0 7]000@cdk;k ugh fn;k rks izkFkhZ us dke NksM+ fn;kA 30-6-2001 dks eSaus vt; gksVy ds ekfydku ls l[r rdknk fd;k vkSj vnkyr esa tkus dh ckr dghA ftldh otg ls vt; gksVy okys us eq>s le> ysus dh /kedh fn;k Fkk vkSj mijksDr >wB eqdnesa esa cnys dh Hkkouk ls eqfYte cuok fn;kA eSaus dHkh xkbM dk dke ugh fd;kA eSa Bhd ls fgUnh Hkh ugh tkurkA vaxszth rks eS fcYdqy ugh tkurkA eSaus VwfjLV jsLV gkml rqylh?kkV ns[kk gh ugh gS vkSj u gh dHkh ogka dke fd;k gSA"
18. To further substantiate that accused-appellants not only knew each other but were intimate and accused Vinod Kumar Singh was familiar with the outlay of the rest house and was known to their employees. The learned AGA has placed the statement of PW 6 Sanjay Sahai and submitted that this witness has stated that Vinod Kumar Singh had come at about 11.00 p.m. and had enquired from him about Mani Raj Singh. On being informed by him that Mani Raj Singh was on the roof with a lady. Vinod Kumar Singh also went there. He came back and asked for something to eat and drink to be served to the lady guest (victim). P.W.6 told him that there is curd in the fridge which was taken out and Lassi was prepared by Vinod Kumar Singh which he took upstairs on the roof in a glass and returned again within 5-10 minutes. This witness also stated that when Mani Raj Singh was with the victim on the roof of the rest house since 8.30-9 p.m. he had called him for getting candles to prepare romantic atmosphere on the roof which were brought by him. In his cross-examination P.W.6, Sanjay Sahai stated that when Mani Raj Singh and Vinod Kumar Singh were on the roof, he was again beckoned for getting some cigarettes which he purchased from the market and gave it to them. This witness, however, in his cross-examination denied his statement u/s 161 CrPC, although he has admitted therein that when Mani Raj Singh accused and the victim were on the roof the former specifically directed him that if any one asks for his whereabouts he may be informed that he is not there and to come on the roof only when he was called by him.
19. On the basis of the aforesaid statements of the accused persons, the learned AGA would argue that these statements belie the contention of the learned counsel for the accused-appellants that they were unknown to each other. Had Vinod Kumar Singh been unknown to Mani Raj Singh, he would not have behaved in the manner as has come in the testimony of P.W. 6 i.e. he asked about Mani Raj Singh from Sanjay Sahai, P.W.6 and went to the roof straight away where Mani Raj Singh was with the victim came down and prepared LASSI by taking curd from the refrigerator and again went on the roof top of the rest house to serve the same to the victim.
20. As regards delay in lodging the FIR is concerned, learned AGA has submitted that the victim was raped by the accused persons on the roof of the rest house. She was put under the influence of some intoxicants given to her in the LASSI offered by the accused-appellants. She was not able to move from the rest house until next morning as she was put under intoxication by the accused in the rest house. They after committing rape upon her had again come to her room and knocked on her door to get it opened for violating her again. When with the aid of another lady of foreign origin she could shift to hotel Ajay. She could not have in the circumstances known the management of this Hotel or the fact that there was any rift or business rivalry between the management and the accused Mani Raj Singh, owner of the rest house prior to shifting. She had confided only in the foreign lady who also had shifted with her from the rest house. Therefore, there could also be no motive or occasion for her to confide about the incident with the management of Hotel Ajay or know about any business rivalry between them and that the victim was not in a normal state of mind and was able to leave the rest house with the help of another foreigner lady who after hearing her miseries not only had helped her in moving out in the morning of next day to Ajay Hotel but had herself also moved there.
21. He further submits that there is nothing wrong if the victim took some time to calm herself and sort out the situation in which she was finding herself gang raped by two persons in a foreign country as she was an unmarried young woman. It had clearly come out in her statement that after thinking over the matter for a long time, she gathered enough courage at about 8.00 P.M. when she decided to inform the police and FIR was thereafter lodged by her at about 8.20 p.m 5.7.2001 at P.S. Bhelupur, Sadar Varanasi.
22. It is vehemently argued that this is a case where a lady had come to our country as a tourist and had been raped by the owner of the tourist house and the guide together. It is stated that defence of the accused that they have been falsely implicated is evident by fact that FIR was lodged after considerable delay after the prosecutrix had shifted to Hotel Ajay is not sustainable. According to him, no tourist much less a foreigner would involve her honour in a foreign country only for the purpose of implicating anyone for an alleged business rivalry between two sets of hotels, particularly whom she did not even know from before as she has come to Varanasi for the first time.
23. After hearing counsel for the parties and on perusal of record we find that prosecution has been able to prove the guilt of the accused beyond all reasonable doubt for reasons given in subsequent paragraphs hereinaftter.
24. The victim in her statement has narrated the effect of intoxicated Lassi offered by the accused persons, the act of ravishing her by them on the roof and the developments thereafter resulting in lodging of the FIR by name against the accused persons which conclusively shows that she had identified and remembered the accused persons even during her drowsiness and the manner in which the accused had followed her up-to her room in the rest house. The relevant extract of the statement of the victim in Court below for ready reference is quoted below.
".... After drinking Lassi my heart was beating fast. They touched me, kissed me. They put off my clothes. I never consented to their acts. I felt asleep after taking Lassi. They committed sexual intercourse with me. When I got up then I went to my room. I was lying on a bed cover on the roof. When I came to my room, I locked my door. These persons knocked the door and loudly voiced more times. I could not understand the words spoken by them. I did not open the door. The next day a woman asked me what has happened here then she helped me to leave the hotel. Same evening the accused persons brought my clothes from the room and dropped there. After leaving the rest house, I went to some other hotel. The name of that hotel I cannot recall. More people came to and asked about the incident. I went to police station and gave my complaint (Paper No.4A ) is the information which was given by me in the police station. This paper is already exhibited as Ext. Ka-14. This paper has been written and signed by me. After giving this paper police officer asked me about the incident. After giving this complaint, I returned back to my new hotel. The next day, I went to District Hospital and I was medically examined.
(Court observation-"The witness while giving her statement was weeping and has tears in her eyes.)"
25. As drink was mentioned in the statement, the court made a query as to what she understood by 'drink'. In response, she clarified that by drink she meant 'LASSI' which was given to her to drink.
26. In his statement under section 313 Cr.P.C. Mani Raj Singh tried to put the blame on the victim saying that she herself had the intention to have bodily intimacy with him. He stated that--
" fnukad 3-7-2001 dks jkf= 8-00 cts eS 5 'kgj ls vk;k vkSj vius jsLV gkml ds dkm.Vj ij ml fnu vk;s iSlsatj dk ys[kk tks[kk ns[k jgk Fkk fd blh chp ihfMrk teZu ukxfjd dkm.Vj ij vk;h vkSj f'k"Vkpkj ds ukrs eSus [kM+s gksdj mldk vfHkuanu fd;k vkSj iwaNk fd dksbZ d"V rks ugh gS fd brus esa ihfMrk us viuk gkFk feykus ds fy, gekjh rjQ c<+k fn;kA ihfMrk us esjk gkFk djhc 5 feuV rd Fkkes j[kk vkSj eq>s dkeqd utjksa ls ?kwjs tk jgh Fkh vkSj dqN dg jgh Fkh tks esjh le> esa ugh vk;kA flQ vkxjk 'kCn esjh le> esa vk;k rFkk mlus eq>ls ;g Hkh dgk ^^vkbZ yo ;w^^A mlh jkr eS djhc 11 cts ls 12 cts ds chp ihfMrk us eq>s jsLV gkml ds Nr ij cqyk;k vkSj tc eS Nr ij igqapk rks og ,d pknj ij ysVh gqbZ Fkh vkSj mlus viuk gkFk esjs rjQ c<+kdj mBus esa enn pkghA eSaus mldk gkFk idM+dj mldks mBus esa enn dh] ml le; og gjs jax dk flYdh xkmu igus gq, Fkh vksj og cgqr gh jksekafVd ewM esa Fkh vkSj eq>s cgqr gh dkeqd utjksa ls ns[k jgh FkhA mlus eq>ls fMªad vjsat djus gsrq dgk ftl ij eSaus dgk fd gekjs ;gka fMªaDl loZ ugh dh tkrh] D;ksafd fMªaDl loZ djus dk ykblsal eq>s ugh gSA rc mlus vius dejs dh pkHkh nsdj eq>ls dgk fd gekjs dejs esa fOgLdh j[kh gSA mldks ykvks vFkok eaxokvksaA eSaus fOgLdh o ,d fxykl eaxok;k mlus rhu isx fOgLdh fi;k vkSj u'ks dh gkyr esa ckj ckj ^^vkbZ yo ;w^^ nksgjk;s tk jgh FkhA mlds ckn ihfMrk us eq>ls lEHkksx ds fy, dgk tks eSaus badkj dj fn;k A esjs gkFk idMs gq, Fkh vkSj eq>s fdl djus dh dksf'k'k dh] mlus cryk;k fd og ekfld /keZ esa py jgh gSA tc eSaus mldh ckr ugh ekuh] rc og xqLls esa iSj iVdrh gq;s cMcMkrh gq, vius dejs esa pyh x;hA
27. The above statement of accused Mani Raj Singh speak volumes of his dirty mind. In fact it appears from the above statement of Mani Raj Singh that he was in fact on the roof of the rest house with the victim and had arranged the drink (LASSI) for her. He claims to have refused to have intercourse with her when she had offered herself to him thereafter she in anger went to her room. The manner and sequence of events stated by Mani Raj Singh therefore, tally with the events narrated by the victim in her FIR except that Mani Raj Singh had tried to put the blame on the victim whereas she claimed to have been raped by him.
28. He tries to take shelter behind a Sadhu whom he alleges was in the room of the lady at about 9.00 P.M. on 4.7.2001 who according to his own version moved out from the hotel on his raising objection that the Sadhu could not remain in her room. It is averred that whenever an extra guest stays payment for extra bed is charged or another room is advised to be hired for the guest. The sadhu was a guest of the prosecutrix. She may have been wanting spiritual guidance from the sadhu or was in search of moral values merely because the victim wanted a sadhu to stay in her room would not mean that victim wanted to have any physical relationship with him. On the contrary it can be said that the accused did not want sadhu or any other person with the victim and therefore, did not allow him to stay at the rest house with her on any condition as to convert their 'desire' into action. He had also denied that the co-accused Vinod Kumar Singh has neither known to him nor had ever he been falsely implicated in the case by Hotel Ajay (family group) due to business rivalry. The relevant extract of the statement of accused Mani Raj Singh is as under:-
"fnukad 4-7-2001 dks 9 cts jkr eq>s esjs gksVy ds deZpkfj;ksa us crk;k fd ihfMrk ,d cgqr gh gq"V&iq"V O;fDr tks djhc 35 o"kZ dk gS vkSj :nzk{k dh ekyk o xs:ok oL= /kkj.k fd;s gq, gS dks vius dejs esa ys x;h gS vkSj dejk Hkhrj ls cUn dj fy;k gSA rc eSus tkdj dejk uacj 203 dk njoktk [kVdk;k rc dkQh nsj ckn ihfMrk dejs ls ckgj vk;hA iwaNus ij mlus dgk fd lk/kw esjk nksLr gS vkSj jkr esa esjs dejs esa jgsxkA esjs ,rjkt o dkQh le>kus ds chp ihfMrk us mls ckgj fd;kA fnukd 5-7-2001 dks og jsLV gkml NksMdj pyh x;hA fouksn dqekj flag tks bl eqdnesa esa esjs lkFk vfHk;qDr gS dks eSa ugh tkurk vkSj u gh mUgksaus dHkh esjs jsLV gkml esa dke gh fd;k gSA vt; gksVy QSfeyh xzqi us dkjksckj dh izfr}afnrk ds dkj.k lkft'ku eq>s bl >waBs eqdnesa esa Qalk fn;kA^^ ¼bl dFku esa ihfMrk ds uke dks 'kCn ihfMrk ls lacksf/kr fd;k x;k gS½"
29. What the accused in his statement above wants to say is that the victim was a consenting party in the carnal act. Even if for argument sake a worst case is taken that a woman not known to such pleasure even then she cannot be taken for granted for physical intimacy without her consent.
30. Her feeling and mental condition why she could not lodge FIR immediately after the incident are described in her cross examination where she denied having falsely implicated the accused. The relevant extract of her cross examination reads thus :
"It is wrong to say that his refusal to have sex with me hurt me and it is also wrong to say that I could not digest the humiliation. It is wrong to say that for two days on 4th of July, 5th of July till evening I could not decide my future action, but the lady inside me was too much hurt. I was fuming with rage against the owner of the rest house. It is also wrong to say that after I shifted to the Ajay hotel, the owner of the hotel Ajay after hearing my story put fuel on the fire and instituted to lodge an FIR. It is also wrong to say that the names of the accused person were provided by the Manager of Ajay Hotel because of business rivalry. It is also wrong to say that the Manager of the Ajay Hotel wrote an FIR and asked me to copy it in my own hand writing. It is also wrong to say that the accused persons never committed sexual intercourse with me.
Sometimes I know about Hindu Mythology. I know very little about Muslim Mythology. I know in Hindu Mythologies Cohabitation during Mensuration is strictly prohibited. I wanted that the owner of the Hotel should play the role of boy friend and behave like the boy friend of Agra. I asked some one and came to know that these accused persons were detained in Jail for 3 years. I do not know nor I know that the owner of the rest house is married accused has got three children. It is wrong to say that the accused persons were falsely implicated. It is also wrong to say that the accused persons never violated my person.
31. In the facts and circumstances of the case we are of the considered opinion that the trial court has rightly held that being a foreign lady without any companion the victim was under dilemma and confused about her future course of action. She on pondering over the matter after shifting from Tourist Rest House to Hotel Ajay on 5.7.2001 decided to lodge the FIR as such there is no unreasonable delay in reporting the crime to the police.
32. She in her statement on 28.4.2005 provided an insight into what was happening in her mind after the incident. Her statement in the trial Court was recorded on 27.4.2005 for three days. She had correctly identified both the accused persons in the Court. The relevant extract of the cross examination read thus :
"I do not remember that what I was doing in between the time when I reached Ajay Hotel and the time of lodging of FIR in police station Bheloopur at 8.20 p.m. On 5th of July 2001. I have written in my report Ext. Ka-14 that I have stayed in hotel Ajay. My statement was recorded by the Magistrate on 6th of July 2001. In my statement under section 164 CrPC I have stated before the Magistrate that "I left rest house and went to the police station for information. I shifted to Hotel Ajay Lahurabeer." The statement recorded before the Magistrate is true. When yesterday, I came in the court for my statement my heart was beating fastly.
On the 3rd of July at 11.00 p.m. in the rest house one people, I can show him ordered Lassi for me. I remember that it was only one glass. I remember the name of the person who ordered for Lassi. He was Mani Raj. Mani Raj is the person who booked the room when I checked in I do not know. I am not sure.
I do not exactly remember the day when I was medically examined. I was accompanied by a female police personnel. I have initiated proceeding against.
At this stage, the witness has requested that a German English translator should be present at the time of my evidence. On her request further cross-examination is adjourned for tomorrow.
Sd/- illegible 28.4.2005."
33. In her cross examination on the next day i.e., on 29.4.2005 she not only denied the suggestion that the name of accused Mani Raj Singh was prompted to her by the public prosecutor or police officer sitting in the court. She stated that she was so shocked that she did not see any police station in the way and after checking-in Ajay Hotel she did not talk to the manager of the hotel about the incident. It appears from the above statement that she was thoroughly confused and was suffering from shock of having been forcibly ravished by two accused at the rest house against her will. Then she kept moving without any purpose after reaching Hotel Ajay and lodging the FIR. She did not know what to do in such a situation in a foreign country and upon whom to rely for help. Thereafter she decided to lodge the FIR.
34. Sri Atam Banerji, the German English Translator who had assisted the victim was summoned by the Court as DW 1 to clarify certain question put to the victim and her understanding of it. He stated thus :-
"He stated that I came to assist the court in connection with the evidence of Miss 'C'. The questions were put by defence counsel to her in English. Every time she was not able to understand the question. I can not say that her English was 50% or 25% correct but she was not good in English. On that day after lunch hours a question was put to the witness- "did you remove your clothes yourself." So far as I remember such type of questions. She was replying herself in English. I do not remember whether she answer to this question was yes or no."
The aforesaid statement does not bring out any thing against the victim at all, hence does not help the appellants.
35. In so far as his appointment by the Court as Translator for the victim is concerned, there is nothing to suggest that the Court had acted illegally or committed any procedural irregularity in providing the services of a translator on request of a victim of rape who is a lady of foreign origin. The Court below had in the facts and circumstances rightly taken a humanitarian approach in the matter to cut short the technicalities as the victim was unable to understand the import of questions put to her and knew very little English. The victim knew very little English or faulty English is also evident from record i.e. the FIR and on other occasions. She used English as a via media to translate her thought in German into English. However, we have considered the procedure of the Court in calling Atam Banerjee as defence witness in later part of the judgment.
36. The statement of the victim and P.W.6 read with the statements of the accused persons establish the fact beyond doubt that both of them were partners in crime and were well acquainted which is apparent from record. The contention of the learned counsel for the appellants that there was no opportunity or time for Vinod Kumar Singh to have had the victim does not stand to scrutiny. Normally the act of carnal activity does not last for more than three to seven minutes. Therefore, it was possible for Vinod Kumar Singh during the period he was on roof to have raped the victim. Moreover, the accused also had opportunity to satisfy their lust when P.W.6 had been sent to bring cigarettes from the market.
37. It would be apt at this stage to refer to the provisions of Section 375 IPC read with Section 114-A of the Evidence Act. These sections read thus:-
"S. 375. Rape.--A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :--
First.-- Against her will Secondly.-- Without her consent.
Thirdly.-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.-- With or without her consent, when she is under sixteen years of age.
Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
"114-A. Presumption as to absence of consent in certain prosecution for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to haven raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."
38. Although it has come in evidence that on account of intoxicating lassi taken by the victim at the hands of the accused persons, she became drowsy. The accused persons taking advantage of this have ravished her. The victim had categorically stated in her long deposition before the trial court that she did not consent for the coitus activity and it was done against her will. Therefore, it would be naive to say that the instant case is only covered under exception fifthly. In the instant case exceptions first and second of Section 375 IPC are also attracted. Thus the contention of the learned counsel for the appellants that no charge u/s 328 IPC was framed or proved against the accused persons is without force. Further as per provisions of section 114-A of Evidence Act there would be a presumption that the victim did not consent for sexual intercourse by the accused persons if after proof of intercourse by accused, the victim in her deposition before the Court states that she didn't consent. Since the victim had not given any such consent and therefore, the act of the accused persons would tantamount to sexual assault under Section 376(2)(g) of IPC.
39. The version of the accused persons that the victim had herself under the influence of alcohol/whisky wanted to have intercourse with them is belied. It is apparent from the record that Mani Raj Singh had taken the victim to the roof, he had procured candle light and cigarettes. He had also asked Vinod Kumar Singh, Guide, who had come later on to get something to drink. Vinod Kumar Singh had made query from Sri Sanjay Sahai and was informed that there is curd in the refrigerator. Vinod Kumar Singh had prepared Lassi to the victim to drink and after the same she felt drowsiness. She was only drowsy and not unconscious. Therefore, she had remembered and named the accused-appellants in the FIR as they forced themselves upon her without her consent and had followed her again to her room but she did not open the door for them. The evidence of Sanjay Sahai, P.W.6 and the appending circumstances that accused Mani Raj Singh in order to commit the offence asked him not to let anybody on the roof and if anybody asks him about the whereabouts of Mani Raj Singh he was to feigning ignorance saying that he was not available there and further that he should not come to the roof unless called by Mani Raj Singh is a sure indication that the accused person(s) wanted complete privacy with the victim in order to fulfill their desire of having her any time to satisfy their lust .
40. It also appears that there was another foreign lady also staying in the rest house, who met the victim in the morning. She on coming to know about the incident of the previous night from the victim helped her in shifting to hotel Ajay, where she also shifted along with her. There is nothing unnatural in the behaviour of the victim in confiding in another woman about being raped by the accused persons when she asked about the commotion in the night and in discussing the pros & cons with her regarding future course of action. The victim was in a foreign country and there was none on whom she could have placed reliance. She deliberate the matter during the day and ultimately decided to lodge the FIR against the accused persons after she could gather a courage on 5.7.2001. Thus we find that there is no inordinate delay in the lodging the report of the crime with the police. The incident took place on 3.7.2001.
41. The most important question in this case is as to whether the prosecution is able to bring home the guilt of the accused on the basis of the evidence was answered in the affirmative. We find that not only this she had named both the accused in her written report and has also mentioned role of each accused in her statement u/s 164 CrPC apart from the fact that the victim had identified the accused also in court beyond doubt during her statement recorded before the trial Court. The court also considered as up to what extent the evidence of the prosecutrix was admissible in this regard considering her statement recorded under section 161 and 164 Cr.P.C. given by her. The evidence given by V.N. Tiwari and the Investigating Officer was also considered.
42. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. In the case of State of Punjab V. Gurmit Singh Ors. AIR 1996 SC 1393, the Hon'ble Supreme Court has observed that -
"the courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her."
43. On principle the evidence of victim of sexual assault stands on par with evidence of an injured witness just as a witness who has sustained an injury (which is not shown or believed to be self-inflicted) is the best witness in the sense that he is least likely to exculpate the real offender. It is on the same principle that evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. Corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases but such evidence cannot be expected in sex offences having regard to the very nature of the offence.
44. To insist for corroboration of the testimony by a victim of such assault amounts to insult to the womanhood. It would therefore be adding insult to injury to insist on corroboration by drawing inspiration from rules devised by the courts in the western world. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence as a general rule, there is no reason to insist on corroboration except from the medical evidence where having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to this qualification that corroboration can be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probability factor is found to be out of tune.
45. In the case of Bhupinder Sharma vs State Of Himachal Pradesh AIR 2003 SC 4684, the Hon'ble Court has observed as under:
"11. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery."
46. The contention of the learned counsel for the appellants that Vinod Kumar Singh was not known to Mani Raj Singh appears to be incorrect. Admittedly, they both had worked in Ajay Hotel. Accused Vinod Kumar Singh was a tourist guide. Therefore, they must have business relation with Mani Raj Singh in the tourist rest house. They were known to each other is also proved from the fact that he had come to rest house and had asked for Mandi Raj Singh, the owner of the rest house. As per statement of PW 6 on being informed that he was on the roof, he straight away went there, came down to prepare something to drink for Mani Raj Singh. He opened the refrigerator and prepare Lassi. These facts show that there was intimacy between the two.
47. The question raised by the counsel for the appellants to the fact that the Sub Inspector B.N.Tiwari did not state in his testimony that what was the intoxicating drug, was put in the Lassi is misplaced. How could the Investigating Officer know about the intoxicating drug administered in the glass of Lassi by the accused because this incident is of the night of 3.7.2001 whereas the investigation had begun in the late evening of 5.7.2001. Only it was the accused persons, who could have known about it.
48. It is also apparent from the statement of the victim that she knew German and little bit of broken English. She was only to understand the question being asked to her and as such had demanded a English-German translator. What were the questions asked and what was translated to her in German for her to understand is not known Sri Atam Banerji, who was doing translation on being record could not say what was the percentage of questions in correct English translated to her. It is unexplained as to what would have been the motive of the victim to implicate the accused persons whether they had any business rivalry in the Ajay Hotel.
49. In defence the accused persons have examined five witnesses as DW 1 to DW 5. Out of them DW 3 and DW 5 were already examined in the case as PW 3 and PW 7 respectively. How a prosecution witness examined in the case can be summoned as a defence witness in the same case? This is beyond our imagination. Before summoning these witnesses, the trial Court ought to have perused the record of the case carefully. DW 1 is the German-English translator who was summoned by the Court to help the victim during cross-examination on 29.4.2005. DW 2 is the Manager of Hotel India where the victim had stayed from 26.4.2005 to 1.5.2005 when she visited India and Varanasi for making statement in the case. He has been probably examined to say that her stay arrangements etc. were made by the police and they were in constant touch with her till she was examined in the Court. No such suggestions had been given to PW 9 'the victim' in her lengthy and grilling cross-examination which could be completed in 3-days. U.S. Gangele DW 3 is Manager of Ajay Hotel and was summoned along with 'employees attendance register' from June, 2000 to December, 2003. As regards the instant case he has reiterated that the victim had stayed in his hotel from 5.7.2001 (12.30 p.m.). S.I. B. N. Tiwari DW 4 is the investigating officer of the case and Mrituanjay Singh DW 5 is the Asstt. Record Keeper of Police Office, Varanasi and had been summoned along with GD of Bhelupur police station from 5.7.2001 to 30.7.2001. Out of these five defence witnesses, DW 2 and DW 4 have been declared hostile by the defence. The trial Court has committed procedural illegality in the case by summoning the prosecution witnesses as defence witnesses. If at all in the interest of justice any clarification was required from any prosecution witness they could be summoned with the leave of the Court on being cross-examined on specific questions, which could not be or were not put to them when their deposition was recorded in the Court. However, the irregularity committed by the trial Court does not in any manner affect the merits of the case. The net result of statements of DW 1 to DW 5 that the defence could not create any dent in the prosecution story, which has been found trustworthy and reliable.
50. The argument of the learned counsel for the appellants that accused Mani Raj Singh had been in jail from 10.7.2001 to 24.3.2004 and thereafter since 3.8.2005 after their conviction in the case, hence a lenient view in quantum of sentence may be taken by the Court but find this plea unacceptable to our conscience. This is not a common case of rape with a woman by any accused, which are on a rise in our society. It is a case which has tarnished the image of the country as a whole in the international society. The henious crime had been committed in the holy city of Varanasi which is an ancient pilgrimage not only for Hindus but to Muslims, Buddhists etc. and the accused are the persons who are engaged in tourism industry. Every visitor may be Indian or foreigner on stepping over the land of Mahadeo come in contact with these people with trust and faith and if they commit breach of trust by self involving in crime like the instant one, then no woman would be safe who had come with a hope to have peace and salvation to visit 'Kashi' situated on the bank of Holy Ganga. The instant crime is slap on our age old culture, which talk of " vfrfFk nsoks Hko%" i. e. 'Guest become God' and Manu had gone far further where he said " ;= ukjh vLrq iwT;Uras] jeUrs r= nsorkAA" - i. e. "Gods reside in the places where woman is worshiped." Rape or Gang rape with a lady should not be taken leniently much less than a case of foreigner in the holy place like Varanasi which is a scar on our Tourism Industry as well. Foreign ladies are to be respected like our Indian woman and a rape with a foreigner lady like the victim who had come along to visit various places in our country should entail exemplary sentence not only because the foreigners, but because such Indians tarnishes the lady of our country and Indian Culture. If such an act is left to go punished lightly then not only our international relations would be deteriorated but being an Indian, we feel a little in our own eyes.
51. In view of the above discussion we are of the considered view, that the prosecution has successfully proved its case beyond all reasonable doubt against both the accused and the learned trial Court has rightly found the accused Mani Raj Singh and Vinod Kumar Singh guilty for the offence under section 376 (2) (g) IPC. Further we are not inclined to reduce the sentence awarded to the appellants by the Court below for reasons mentioned above. We find no merit in both the appeals which are accordingly dismissed. Both the appellants are in jail and would serve out the remaining part of their sentence. The trial Court has awarded compensation of Rs. 1.5 lacs to be paid to the victim out of the amount of fine realized from the appellants. Since the victim is a German national, so we direct that after realization of fine the trial Court would remit the amount of compensation to the victim after getting her residence/postal address verified from German Embassy in India so that she may not have to visit India after incurring huge expenses.
Let a certified copy of the Judgment be sent to the Court concerned for compliance, which should be reported within a month.
Dt. 17th October 2012 Ak/cpp ................. Rakesh Tiwari, J.
..........Anil Kumar Sharma, J.