Rajasthan High Court - Jodhpur
Parbat Singh @ Rana vs State on 8 February, 2012
Author: Govind Mathur
Bench: Govind Mathur
DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State
-1-
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
J U D G M E N T
Parbat Singh @ Rana vs. State of Rajasthan
D.B.Criminal Appeal No.344/2008
against the judgment dated
30.4.2008 passed by Additional
Sessions Judge (Fast Track) No.1,
Udaipur, in Sessions Case
No.10/2008.
Date of Judgment :: 8th February, 2012
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE NARENDRA KUMAR JAIN-II
Mr. Vineet Jain, for the appellant.
Mr. K.R.Bishnoi, Public Prosecutor, for the State.
Mr. Pradeep Shah ]
Mr. Vinay Kothari] for the complainant.
....
BY THE COURT : (PER HON'BLE MATHUR,J.)
REPORTABLE By the judgment impugned dated 30.4.2008 passed by learned Additional Sessions Judge (Fast Track) No.1, Udaipur, the accused appellant has been convicted for the offences punishable under Sections 376 and 450 of the Indian Penal Code and is sentenced as under:-
DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -2- u/S.450 IPC - Seven years' rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine to further undergo six months' additional simple imprisonment.
u/S.376 IPC - Life imprisonment and a fine of Rs.25,000/- and in default of payment of fine to further undergo one year's additional simple imprisonment.
To unfold initial facts of the case it shall be appropriate to quote the First Information Report (Ex.P/1) submitted at Police Station Ambamata, Udaipur on 9.1.2008 at 02:15 PM, as under:-
"I am a British Journalist and businesswoman and I have been traveling to India for the past two years. I arrived in India on the 18th December and I booked into the Pardeshi guest house. I have stayed at the guest house on two previous occasions as the owner, Prabat Singh also know as Rana.
On the night of 23 December firoz Khan dropped me near the hotel so that i could eat and he could go back to his family home to sleep. it was the last day of Eid and i had spent a lot of time at the family home over the previous three days, it would not be normal for my partner to stay the night with DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -3- me at the hotel out of respect for his family.
I went to the roof of the guest house to the restaurant where Rana was having dinner with some Italian tourists and another Indian man. He came over and spoke to me and asked how i was, where firoz was and then returned to the table where he was drinking alcohol. He drinks a lot of whisky and i could see there was a bottle on the table as well as bottles of beer and possibly wine. They were also creaky quite intoxicated, and I remember him kissing one of the women before they all left the guest house. The other Indian Man who was with them returned shortly afterwards and they were laughing and joking together and then he also left.
I then moved to my normal table and he then came and joined me bringing a bottle of whisky he clearly wanted to drink more. We were talking and he kept trying to upset me and to discredit Firoz Khan. He kept saying he didn't love me and that I was nothing to him, he said that my partner had grown up on the streets and he was scum I was upset. He kept saying that he wanted to be with me. I made it very clear that I was not interested in him and that I had no interest in a relationship. I could see he was trying to upset me and he said a lot of bad things about my friend's family and then suddenly he viciously grabbed me by the hair twisted my head round trying to kiss me. I pushed him away and then again told him I was not DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -4- interested in him. I thought it was the drink talking.
He is not a particularly big man but it was clear that the alcohol had made him crazy and i did not expect this. I was shocked and told him so he apologized and said he was sorry that he was jealous of Firoz Khan and that he was attracted to me. He kept saying he was sorry and that he liked me very much. I told him not to be so stupid and that I was with someone else.
Shortly before his happened I took sleeping tablets at the table, in front of Rana, I explained what the tablets were and said that I was going to my room. I had enough and wanted to sleep. It was cold and so I asked for blankets there had not been enough the night before. By this time the boy he employs was asleep on the kitchen floor, where he normally sleeps.
I decided to leave the terrace and go down the stairs to my room to sleep. The room is on the second floor and there is a terrace outside but there are no other guest rooms on this floor. He followed me down the stairs and I said good night, he apologized again and I went to bed alone. I was already in bed asleep without my clothes on as i normally do.
I was then wakened by frantic knocking on the door. I was sedated from the sleeping tablets and I thought it must be and emergency and so DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -5- i put on my vest and a sarong on to answer the door to Rana. E said he had more blankets for me. It was normal for him to enter the room with linen or breakfast so I did not anticipate what his motive was this time.
He barged into the room and insisted on putting the bedcover on the bed himself. It was when he put the bedcover down on the bed that he pushed me down onto the bed from being and he forced himself on top of me and then raped me. First vaginally and then he tried to rape me anally. I was shocked and the effects of the sleeping tablet made me paralyzed. I eventually lost consciousness briefly and when I came round he was leaving the room. I could not move, I could not speak I felt like I was screaming but there was no sound coming from me. I sat all night crying and I now understand that Firoz Khan called the hotel three times to see where I was as it was unusual for me to not be up early. Each time Rana told him I was in my room.
I called Firoz in the morning, several times, but I was so shocked I could not speak and eventually when I did speak he knew there was something wrong. I told him I needed to leave the hotel when Firoz saw me he could not believe the condition I was in I was crying and rocking and he asked me who had done this to me. I explained I needed to leave and then I would explain I was terrified and just wanted to leave as quietly as possible. Looking back now I was in terrible shock and I was in fear for my life.DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -6- I went to the roof terrace and told Rana I was leaving the hotel I was very emotional and he chased me down the stairs, he kept saying "sorry, sorry" over and over again and begging me not to leave that he was sorry and he didn't mean to hurt me. He did not know that Firoz was waiting by my room and he changed this mood. I asked for my bags to be taken to the street and I shouted for Gudu (Ryaz) khan to take my bags.
Rana did not expect Firoz to be there and Rana was real agitated. Firoz was sitting on the terrace with my camera bags and as I was leaving the hotel Rana followed me down the next flight of the stairs and caught hold of my by the arm he was then making his hand as if in prayer and he begged me over and over against no to tell Firoz what he had done to me as he said he would kill him. He begged me for himself and he told me if didn't tell anyone that would make everything ok. I understood his remarks to be another threat to me I felt that he would kill me.
Since this was happened I have been in and out of hospital, GBH American and I was finally admitted to the Aravili hospital. I have had a stomach and urinary infection and I have also suffered a number of convulsions and was taken to hospital by ambulance following a convulsion at my hotel. I have had to have brain scans and I have been suffering from severe shock and I am having anxiety attacks. I have a recurring nightmare DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -7- of someone knocking at my door in the night. This even happened to me when I was in admitted to the Aravili Hospital.
I am fearful not only for myself but for my friend Firoz Khan and he is already being ostracized by the community. I am too scared to be here and yet I am too frightened to leave him behind. I feel like he may as well have killed my that night as because the fear I am left with is worse than dying.
When this happened Beattie was not at the hotel. Since she returned to Udaipur she came uninvited to the Tiger Hotel to try and stop me from taking any action against Rana. I do not know how she knew where I was staying. At the time I was with my friend Firoz Khan, Caroline Davies and Ali. She told me he was half the size he was and that he had lost a lot of weight and size since this had happened. She begged me because she could lose everything, meaning her investment in the guest house I presume. She also threatened Firoz Khan that she would made trouble for him and me in the city. I believe that she works as a tour guide with German Nationals. I told her it was not appropriate to talk to her, I felt intimidated and I was crying. My friend Caroline took me to my room and then went back to collect Firoz and Ali as we felt it was not appropriate for her to be trying to intimidate them as well.
I have not made a complaint earlier because I have been too sick in hospital. My friend DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -8- Firoz Khan has begged me daily to take action with the police when I feel strong enough to do so. I was discharged from the Aravilli Hospital on Friday 4th January 2008 and I made a call to the British Consulate on the morning of the 5th January. My friend Caroline Davies returned from a tour on Monday 7th January and she has been supporting me since.
It is very important to me that no details of this case are released to the press and I ask that you protect my identity and that of my friends.
this is a true and accurate account."
An investigation for the offence punishable under Section 376 Indian Penal Code was initiated and a report as per provisions of Section 173 Cr.P.C. was filed before the competent court alleging commission of offences punishable under Sections 376 and 450 of the Indian Penal Code. The competent court committed the case to the court of Sessions that framed charges on 15.1.2008 for commission of the offences punishable under Sections 450 and 376 Indian Penal Code. The accused denied the same and demanded trial.
The prosecution supported its case with the aid of 15 witnesses (PW-1 to PW-15), documents Ex.P/1 to Ex.P/16 and two articles (Article-1 and Article-2). DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -9- The accused availed opportunity as per provisions of Section 313, Cr.P.C. to explain all the adverse circumstances available in the evidence adduced by the prosecution and termed them as false and concocted. It was also stated by the accused that the complainant with the aid of Firoz Khan wanted to occupy "Pardeshi Guest House", therefore, he has been falsely and intentionally implicated in the case. In defence, the statements of DW-1 Lalita, DW-2 Balwant Singh, DW-3 Khuman Singh and DW-4 Anita Sharma were recorded and the documents Ex.D/1 to Ex.D/20 were exhibited. An article too was tendered in evidence as Article-3.
The trial court adjudicated the entire matter by framing two points for consideration and those are:-
(1)WHETHER the accused with an intention to commit rape with Guest Woman, who was staying at "Pardeshi Guest House", made a trespass in her room on 23.12.2007 and whether that amounts to commission of an offence punishable under Section 450 Indian Penal Code?
(2)WHETHER in the night of day and place aforesaid the accused committed rape with the Guest Woman and whether that amounts commission of an offence punishable under Section 376 Indian Penal Code?DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -10- In the points aforesaid the complainant victim has been called as 'Guest Woman', therefore, in this judgment too we are referring her as 'Guest Woman'. The testimony of the Guest Woman was examined by the trial court as PW-1. The entire statement of PW-1 deserves to be quoted and that is as under:-
"I arrived in India 19 Dec., 07 in the morning. I was picked from Ahemdabad Airport for Udaipur. I am journalist and business woman. I have not been working in India. My intention to invest in India in business and open business in India. I planned to settle in India. In November I booked Pardeshi Guest House. On 23rd Dec., I was dropped back to guest house by my friend. I went to roof top restaurant to take dinner. I took it many times. I stayed in Guest House. Mr. Parbat Singh Rana was taking dinner on other table with Italian people. He was drinking wine. Normally when I was in guest house Mr. Rana;s girl friend ms. Bettie was not with him. Rana came to my table and asked me why I was eating in hotel. Mr Rana kissed one of the Italian lady. There were also Indian people. Indian gentleman was laughing. Mr. Rana asked me to join the table. He had consumed alcohol. Other people left the hotel. Mr Rana grabed my hair and want to kiss me. I was shocked. I rejected him and said I was not interested in you. He wanted to upset me for my fiend. I took sleeping tablet and said I was going to bed for sleep. I took two sleeping tablets. I reminded Rana for DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -11- blankets. Then I left terrace. Mr. Rana followed me he begged sorry for he did. Again I rejected him. I went to my room alone. I went to bed & slept. Sometime after there was knocking on the door. I got up & T-shirt & sarong on my body. Rana said he had more blanket & bed cover for me. I opened the door to receive blanket. When I was taking the blanket Rana pushed me. In that time I did not anticipate his idea for raping me. I was tired. Rana took off my sarong and he vaginally raped me and tried to rape me anally. Again he entered my vagina. There was blood on bed sheet. Because woman does not want sex, woman vagina was tight & dried. He again tried me anally. My face was down Mr. Rana was on top. I had pain in my anus. I was fighting. I was parralised with fear & shocked. He already discharge with me. He was leaving the room. I felt as I was screaming. He just left. I sat whole night crying. In the morning my fiend Firoz Khan called the hotel to see where I was because I was not answering my phone. I normally get up very early. My friend called the hotel to Mr. Rana three times. I believed that Mr. Rana told him I was sleeping in my room. I called Firoz two-three times but couldn't speak because I was at shock. I called him by SMS and told him to come and get me. He arrived after five minutes and told who had done to you. I was crying & screaming. I refused to tell him. I told him that I had been raped and showed him bed with blood.; I packed up the hotel. I went up to stairs and told Rana that I was leaving hotel. Rana was in the kitchen. He DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -12- stood up I was frightened. He said I am sorry. I refused to listen and told that sorry did not make everything all right. He followed me down to terrace where Firoz was sitting. Mr. Rana did not expect to Firoz there. Mr. Rana changed himself and saying Hello to Firoz. I called tempo from the balcony to collect my beg. Again Mr. Rana followed me. He had a houseboy. Mr. Rana sent him back. Mr. Rana was again begging not to tell Firoz which I did you. He will kill me and do not tell anyone. Rana was threatening me not to tell anyone. I told him that sorry does not mean anything. I was taken to another hotel. Firoz asked me to tell the truth but I refused him. Next day I was taken GBH American hospital where I was too embraced and shame to tell what was happened to me. I was in great pain by coincidence they found stone in my bladder. They treated me and gave the medicines. The pain did not go for five days. I did not my bed I was offered two times admission in hospital but I did not allow them. On 30th Dec., I suffered blood in my urine and I had blood also in my anus. This has never happened me before. I again went to American hospital. I passed blood clots for two days. I stayed in my friend's house who nursed me. I stayed in hotel. Hotel staff cared me. Hotel Staff's changed my room near the reception to watch on me. On Jan., 1st was feeling better. I had light food. I was suddenly feeling hot and convulsion. My arms & legs could not move. I crawlled to reception. I was in severe shock. Convulsion was due to hypervablel. It DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -13- happened twice and they called ambulance to the hotel. I was taken to American hospital. My brain scan was done. Everything was normal. Next day I was admitted to Arravali hospital. I was put under observation for two days. I was frightened and I did not admit in hospital. I believed that it was due to shock. I wanted to discharge. And I got discharge on 4th Jan. 08. After that I was strong enough to do. On 5th Jan I called the British High Commissioner and seek advice to do. On 7th Jan I again contact the British High Commissioner. They wanted fax for happening. I did it. I felt that if I did not take the action then Mr. Rana would do to another woman. On 8th Jan 08 I returned to Arravali hospital and told the doctor what really had happened to me. And asked the doctor to give me any medicine to remove infection, which was given by Rana to me. This treatment was given in front to Carroline. I told that Mr. Rana to be tested. At first I gave FIR to PS Hathipole then I was taken to small hospital there they took my weight & height. Then they took to public hospital in maternity ward. They took my examination. There they insert finger inside. Then nurse said me to sit on bed where I sat and got blood on my shawl. After this I came to guest house. After this Hathipole & Ambamata Police took me to Pardeshi Guest House to reannect the crime. Police arrested Mr. Rana before I left the Hathipole police station. ON 7th Jan Mr. Rana's girl friend came to my hotel and said me not to take action against Mr. Rana. And told Rana lost DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -14- his weight and he was half of his size. Rana's girl friend told me that I had invested a lot of money in guest house business. I told her that I did not want to talk you. She also threatened my friend Firoz to finish him. I had given FIR to Ambamata Police Station. FIR is Ex P-1 bearing my signature A to B, FIR chalked Ex P-2 bearing my signature A to B. Crime Details is Ex P-3 bearing my signature A to B. I was medically examined. Rana is present in Court."
Shri Firoz Khan (PW-3) stated that in the morning of 24.12.2007 he received a telephonic call from the Guest Lady who was staying at Pardeshi Guest House. In day hours at about 12-1 PM she again made a call and told him to pick her. Prior to that he made a telephonic call to Parbat Singh, the accused, to know welfare of the Guest Lady who used to come to his shop every morning to have a cup of tea. The shop is opposite to Pardeshi Guest House. On being asked, Parbat Singh told him that the Guest Lady was in her room and he was in the restaurant. This witness further stated that he went to the guest house and on knocking, the door of the room was opened by the Guest Lady who was looking quite frightened and was also weeping. The Guest Lady stated that Parbat Singh Rana had subjected her to rape last night. She also told that Parbat Singh kissed her at about 11:00 PM. She also conveyed that the rape was committed by Parbat DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -15- Singh by entering into the room. This witness then picked the Guest Lady and lodged her at Hotel Tiger, Gangaur Ghat. The lady was then taken to the American Hospital where she was treated for three days. This witness also stated, that on reaching at Tiger Hotel he conveyed to the staff of that hotel that the Guest Lady was having some problem and, therefore, she was required to be taken to hospital. After availing treatment at American Hospital for three days, as per this witness the Guest Lady was treated for 2-3 days at Aravali Hospital. In cross examination this witness stated that at the time of checking out of Guest Lady from Pardeshi Guest House, accused Parbat Singh and one other employee of the guest house viz. Khuman Singh carried the baggage and put that in a Tempo (Auto Rickshaw).
An another important witness Shri Riyaz Khan (PW-10) who happens to be brother of Firoz Khan (PW-3) stated that on 24.12.2007 he went to Pardeshi Guest House at about 1-2 PM wherefrom he picked up the Guest Lady and left her at Hotel Tiger, Gangaur Ghat. On 25.12.2007 he was called by Guest Lady and he took her to American Hospital. On 2.1.2008 also he took the Guest Lady to Aravali Hospital. In cross examination this witness stated that he used to park his Tempo (Auto Rickshaw) opposite to Pardeshi Guest House. The DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -16- shop of his brother Firoz (PW-3) is also there. He served the Guest Lady from 24.12.2007 to 4.1.2008. On 24.12.2007 the baggage of the lady was carried by Parbat Singh and one other boy serving at Pardeshi Guest House. This witness quite specifically stated that his brother Firoz did not meet him on 24.12.2007 and on 25.12.2007 also Firoz came to American Hospital subsequent to his leaving the hospital premises.
PW-4 Shri Shivraj Singh, owner of the building where Pardeshi Guest House is in operation, stated that the room which is rented to Parbat Singh to run a guest house is just adjacent to his residence and an iron cot is lying in that room. The noise of any movement of the cot in the room can be heard in the room under possession of this witness. This witness did not hear about any incident of rape said to be committed on 24.12.2007. According to this witness the shop of Firoz is situated opposite to his house and Firoz came to him 2-4 times to get the premises on rent to run a paying guest house. Firoz also came to have a shop on rent at ground floor. This witness further stated that on 24.12.2007 the foreigner lady went with Firoz without any complaint and in quite a cheerful mood. Her baggage was kept in a Tempo (Auto Rickshaw) by Parbat Singh and Khuman Singh.
DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -17- PW-8 Ms. Carroline is also resident of United Kingdom and she stated on oath that on 7.1.2008 she came to Udaipur. The Guest Lady told her that she was raped by Parbat Singh Rana. This lady is also personally known to accused Rana. As per this witness the rape was committed in the guest house but the Guest Lady forgot the date of rape. This witness accompanied the Guest Lady to Aravali Hospital but did not state anything about the incident of rape to the treating doctors. This witness also stated that though she was knowing Parbat Singh Rana, she did not disclose his name to the police and only said that rape was committed by the chef. It was also stated by this witness that she was residing with one Chandu at Udaipur but the local address was not given by her to the police officials.
Shri Ranjeet Singh (PW-12), Manager of the Tiger Hotel, stated that the fact about boarding of Guest Lady at Pardeshi Guest House, before coming to Tiger Hotel is not recorded in the guest register. The Guest Lady stayed at his hotel for a period of 17 days. She checked in on 24.12.2007 at 02:15 PM.
PW-14 Shri Bhagwat Singh being Investigating Officer narrated all the steps taken during the course DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -18- of investigation. As per this witness a written report was submitted to him by the Guest Lady, a British resident, on 9.1.2008 at police station Ambamata. After registering a case for commission of an offence punishable under Section 376 Indian Penal Code, investigation was initiated and the medical checkup of the Guest Lady was made by the Medical Jurist. The alleged site of the commission of offence was also inspected with the aid of the Guest Lady and the statements of Dr. Sanjeev Agrawal, Carroline Canon, Firoz, Siraj @ Guddu, Dr. Gaurav Vadhavan, Shivraj Singh, Ranjeet Singh and Dr. Rahul were taken as per Section 173 Cr.P.C. The record of American Hospital and Aravali Hospital were also seized and included with the case file. The accused was arrested as per Ex.P/9 and on basis of a disclosure made by him as per Section 27 of the Indian Evidence Act on 10.1.2008 at 01:45 PM a "C" Form book was recovered as per Ex.P/10 from the kitchen of Pardeshi Guest House. This witness stated that he did not seize mattress, bed sheet etc. on the count that those were already washed.
PW-9 Dr. Anis Ahmad stated that he examined the Guest Lady on 9.1.2008 and gave a report i.e. on record as Ex.P/6. As per this witness, the Guest Lady aged 40 years cannot be subjected to rape by the accused without physically combat. He also stated that DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -19- looking to the physical structure of the lady as given in Ex.D/15 and on being compared with the report Ex.P/6 the struggle during the rape is quite obvious.
PW-5 Dr. Rashmi Khatri gynecologically examined the Guest Lady on 9.1.2008 being Senior Resident of Pannadhay Government Hospital, Udaipur. As per this witness last mensuration period was noted in Ex.P/6 as 23.12.2007 as that was conveyed to her by the Guest Lady.
As per prosecution the Guest Lady remained under treatment at American Hospital and also at Aravali Hospital, thus, the treating doctors at the hospitals aforesaid were also examined as prosecution witnesses.
Dr. Rahul Bhatt (PW-7) stated that on 25.12.2007, while working as Urologist Consultant at American Hospital, he treated the Guest Lady who came to him with complaint of abdominal pain. The pain was due to a small stone in her renal tube. This witness also stated that no complaint with regard to commission of rape was at all made by the Guest Lady before him. The Guest Lady also not made any complaint to this witness about bleeding from vagina or anus. DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -20- Dr. Sanjeev Agrawal (PW-6) stated that on 30.12.2007 the Guest Lady came to him with a complaint of abdominal pain, bleeding from urinary outlet and anus. She was having infection in her urinary track and she would have been in pain due to stone. She was also suffering from the ailment of piles. She did not make any complaint about commission of rape with her to this witness.
In defence, testimony of DW-1 Lalita, DW-2 Balwant Singh, DW-3 Khuman Singh and DW-4 Anita Sharma was examined. Smt. Lalita (DW-1) is wife of the accused and as per this witness she with her husband was residing at a place having distance of about one kilometer from Pardeshi Guest House. Her husband used to go to the guest house where he was serving at about 06-06:30 AM and used to return in night at about 11-12 PM. While examining testimony of this witness the Guest Lady and her daughter were present in court and the daughter of the Guest Lady was pointed out by this witness as the person running the guest house.
Shri Balwant Singh (DW-2) stated that on 23.12.2007 he organised a party at Pardeshi Guest House being blessed with a daughter. The party was attended by Prabhu Singh, Bhupendra Singh, Jaiveer Singh etc. Parbat Singh and Khuman Singh were serving DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -21- them. Parbat Singh left the guest house at about 01- 01:30 AM and the channel gate of the guest house was locked by Khuman Singh who was staying there in night.
DW-3 Khuman Singh stated that on 23.12.2007 Parbat Singh left the guest house at about 01-01:30 AM. According to this witness the Guest Lady did not came to the guest house and he never saw her there.
The trial court convicted the accused by relying upon the statements of prosecutrix, the Guest Lady, with assertion that in view of the judgments referred (Sua Moto v. State of Rajasthan, 2005(6) RDD 1903 (Raj.); Rataniya v. State of Rajasthan, 2006(1) Cr.L.R. (Raj.) 886; Kamalanantha & Ors. v. State of T.N., (2005)5 SCC, 194; Sukhde Anand v. State of H.P., 2006(1) Crimes 774; and State of U.P. v. Pappu @ Yunus, 2005(3) SCC 594), it is well settled that while adjudicating a case pertaining to offence of rape the sole testimony of victim is sufficient to establish guilty. The trial court found testimony of prosecutrix trustworthy and sufficient to convict the accused appellant.
In appeal, the trustworthiness of the prosecutrix is impeached on several counts. It is urged that as a matter of fact the prosecutrix is not DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -22- a reliable and trustworthy witness. Whatever evidence adduced by her is not adequately supported and the entire prosecution case suffers from heavy contradictions. It is also emphasised that the prosecutrix did not choose to disclose the fact about commission of rape with her for good 15 days though she had adequate opportunity to do so before the responsible and reliable persons.
Learned Public Prosecutor in general defended the conviction recorded and the sentence awarded.
We have pondered the entire evidence to examine correctness of the findings given. We are having no doubt about standards of appreciation of evidence of prosecutrix in rape cases. In rape cases a victim is certainly required to have enormous courage to come forward and state about torturous happening. The evidence given by her is not supposed to be tested with suspicion and that should not be kept dependent to further corroboration except in compelling circumstances. However, for applying such standards the prime satisfaction is reliability of the witness and the testimony should inspire confidence.
Any delay caused in lodging the first information report may be a reason to raise eye brows in DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -23- believing the prosecution case and that demands satisfactory explanation. Hon'ble Supreme Court in Thulia Kali v. State of Tamil Nadu, reported in 1972 Cr.L.J. 1296, while examining the issue of delay in lodging first information report held as under:-
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -24- However, the delay caused in lodging complaint in rape cases is not such an important factor as that is in the cases of other crimes. Hon'ble Supreme Court in Sahib Ram v. State of Maharashtra, 2006(3) SCC (Cr.) 408, while dealing with the issue of delay in lodging complaint, held that "Delay has the effect of putting the Court on its guard to search if any (plausible) explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case." As such the prime consideration is acceptance value of the explanation advanced to arrive at the satisfaction to believe bonafides in causing delay in lodging first information report.
The Court while adjudicating the cases relating to the offence of rape is required to deal the same with utmost sensitivity. We are in absolute agreement with the view taken by Hon'ble Gujarat High Court in State of Gujarat v. Virendrabhai DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -25- (MANU/GJ/8516/2006), about approach of the Court while dealing with a case of rape. In the case aforesaid the Court observed as under:-
"It has to be borne in mind that approach required to be adopted by Courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."
In view of the legal position noticed above, we have to consider quite carefully the nature and circumstances of the offences alleged with clear understanding that conviction of the accused can be DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -26- based solely on the evidence of the prosecutrix, if that is worth credence. The testimony of the prosecutrix, if is trustworthy, deserves to be accepted without further corroboration though such corroboration is advisable. To create doubt upon credibility of the evidence adduced by the prosecutrix, there must be certain unsatisfactory factors in her testimony and that may include reason for false incrimination of the accused. The expediency in lodging the complaint is not so rigorous in the sex offences as that is in other cases. This flexibility is due to several social and psychological factors including obvious hesitation in coming forward to unfold the torturous experience which is socially stigmatic too. The Court, thus, is required to examine all relevant factors while dealing with the issue pertaining to delay in making complaint. With specifications noticed above, the fundamental principle of the criminal justice delivery system that the prosecution must adduce unbreakable evidence to secure conviction and any doubt about credence of the evidence and about happening is sufficient to extend benefit of doubt to the accused, resulting his acquittal. Such doubt must be due to lack of evidence to believe the happening and must not be due to minor non-consequential defects in investigation. DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -27- In the case in hand, conviction of the accused is mainly based on testimony of the prosecutrix. According to the prosecution the Guest Lady at the first instance faxed the complaint Ex.P/16 to British High Commission and relevant content of that is as under:-
"I am a British Journalist and businesswoman and I have been travelling to India for the past two years. During the last year I have been visiting my partner who is an Indian National and his family who have, become my family.
Last year I visited India on seven occasions and it was my intention to invest in India and make a future for myself and my partner here and by opening a second office in India. We recently appointed an agency in London for us to apply for a fiance Visa. The company is called Barrar Platt. Up until the events of the 23rd December I saw this country as my future I now feel I have no future.
This last trip I arrived in India on the 18th December and I booked into the Pardeshi Guest house. I have stayed at the guest house on two previous occasions as the owner. Parbat Singh and his German girlfriend Beattie who has invested in the guest house with him are known in the community and therefore both my partner and myself trusted them. Mr. Singh is married and has one child but is also in a DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -28- relationship with the German woman who I know only as Beattie (Sp.). He has told me on another occasions that she is his partner not only in business.
On the night of 23 December my partner dropped me near the hotel so that I could eat and he could go back to his family home to sleep. It was the last day of Eid and I had spent a lot of time at the family home over the previous three days. It would not be normal for my partner to stay the night with me at the hotel but of respect for his family.
I went to the roof to where the hotel owner was having dinner with some Italian tourists and another Indian man. He came over and spoke to me and asked how I was, where my partner was and then returned to the table where he was drinking alcohol. He drinks a lot of whisky and I would see there was a bottle on the table as well as bottles of beer and possibly wine. They were all clearly quite intoxicated. And I remember him kissing one of the women before she left. The other Indian Man who was with them returned shortly afterwards and they were laughing and joking together.
Shortly afterwards two older Indian gentleman arrived for dinner. I went and sat by the kitchen to watch Rana cooking them Muttar Paneer. The boy he employs was helping him. I have often cooked with him for my partners birthday in August I organised a dinner party DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -29- on the roof and his family and the children came. This was someone I trusted.
I then moved to my normal table and he then came and joined me bringing a bottle of whisky he clearly wanted to drink more. We were talking and he kept trying to upset me about my partner. He kept saying he didn't love me and that I was nothing to him, he said that my partner had grown up on the streets and he was scum I was upset and I could see he was trying to upset me he said a lot of bad things and then suddenly he grabbed my by the hair twisted my head round trying to kiss me. He is not a particularly big man but it was clear that the alcohol had made him crazy and I did not expect this. I was shocked and told him so he apologised and said he was sorry that he was jealous of Firoz Khan - my partner and that he was attracted to me. He kept saying he was sorry and that he liked me very much. I told him not to be so stupid and that I was with someone else.
Shortly before his happened I took sleeping tablets t the table, in front of Rana, I explained what the tablets were and said that I was going to bed I had enough and wanted to sleep. It was cold and so I asked for blankets there had not been enough the night before. By this time the boy he employs was asleep on the kitchen floor, where he normally sleeps.DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -30- I went down the stairs and he followed me. I said good night, he apologised again and I went to bed alone. I was already in bed asleep without my clothes off when there was a knock at the door, because it was Rana and I trusted him. I put my t-shirt and a sarong on to answer him. He said he had more blankets for me. He barged into the room and it was when he put the blanket on the bed he pushed me to the bed from behind and he forced himself on top of me and he then raped me. Firstly vaginally and then he tried to rape me anally. I was so shocked and the effects of the sleeping tablet made me paralysed. I eventually lost consciousness briefly and when I came round he was leaving the room. I could not move. I could not speak I felt like I was screaming but there was no sound coming from me. I sat all night crying and I now understand that my partner called the hotel four times to see where I was as it was unusual for me to not be up early. Each time Rana told him I was in my room.
I called my partner in the morning, several times, but I was so shocked I could not speak and eventually when I did speak he knew there was something wrong. I told him I needed to leave the hotel when Firoz saw me he could not believe the condition I was in I was crying and rocking and he asked me who had done this to me. I explained I needed to leave and then I would explain. I went to the roof and told Rana I was leaving and he chased me down the stairs, he kept saying "sorry, sorry" over and over again and DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -31- begging me not to leave. When we got to the terrace by my room I asked for my partners brother to help with my bags. Rana did not expect Firoz to be there and Rana was really agitated. Firoz was sitting on the terrace with my partners bags and as I was leaving the hotel Rana followed down the next flight of stairs and after catching hold of me by the arm he was then making his hands as if in prayer and he begged me over and over again not to tell Firoz what he had done to me as he said he would kill him. He begged me for himself and he told me if I didn't tell anyone that would make everything ok I understood his remarks to be another threat to me I felt that he would kill me.
Since this has happened I have been in and out of hospital, GBH American and I was finally admitted to the Aravili hospital. I have had a stomach and urinary infection and I have also suffered a number of convulsions and was taken to hospital by ambulance following a convulsion at my hotel. My partner's family who have no idea what has happened to me as it would break his mothers heart and I do not want to cause them any problems.
I am fearful not only for myself but for my partner and he is already being ostracised by the community. I am too scared to be here and yet I am too frightened to leave him behind. I feel like he may as well have killed me that night as because the fear I am left with is worse than dying.DBCr.Appeal No.344/08
Parbat Singh @ Rana v. State -32- I ask that you contact the local police on my behalf and I would like to press charges against his man for what he has done to me and I truly believe he will do this again if he is not stopped. He has admitted in front of witnesses that he did this to me and I believe they may be willing to talk to you as well."
The British High Commission did not choose to act upon the communication referred above. The complaint Ex.P/1 then was submitted at police station Ambamata on 9.1.2008. From reading of the documents Ex.P/16 and Ex.P/1 it reveals that the Guest Lady was frequently visiting Udaipur to search her future there and with this view she was intending to invest also. She was having quite intimate relations with Firoz (PW-3). In the night of 23.12.2007 Firoz dropped her at Pardeshi Guest House and prior to that she spent good time of about 2-3 days at the residence of Firoz. The accused as per the Guest Lady ill-treated her at the restaurant of the guest house being under intoxication, but then apologised for that. The Guest Lady while going to bed consumed sleeping pills in front of the accused. The accused entered in her room to keep blankets and by exploiting the circumstances raped her. In next noon, on calling, Firoz came to the guest house and the Guest Lady left the place with him. The Guest Lady being sick and under depression DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -33- did not make complaint to the police, though to Firoz for pursuing to take necessary action. While deposing before the court, the Guest Lady (PW-1) stated that she called Firoz through an SMS. Firoz on reaching there asked her about the culprit of happening, but she refused to tell him though the fact about commission of rape was disclosed and the blood stained bed sheet too was shown to him. She then left the guest house in a Tempo with Riyaz. Firoz did not accompany them but came to the Tiger Hotel subsequently. This witness also stated that her date of birth is 14.6.1967 and she was working as Journalist from last 20 years. The statements made by Firoz (PW-3) are not matching with narration of facts given by the Guest Lady. As per this witness when he reached at the guest house the Guest Lady on seeing him started weeping and also conveyed that she was subjected to rape by Parbat Singh @ Rana. He then took her to the Tiger Hotel and also conveyed the hotel staff about ill-health of the lady. He further stated that he took the Guest Lady to the American Hospital for her treatment. The version given by Riyaz (PW-10) is quite different with the facts stated by PW-1 and PW-3. This witness stated that on 24.12.2007 he went to Pardeshi Guest House and took the Guest Lady for Tiger Hotel. The Guest Lady again called him on 25.12.2007 and on that day she went with him to the DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -34- American Hospital. As per this witness he did not meet Firoz on 24.12.2007 and on 25.12.2007 also Firoz came to American Hospital quite later and at least subsequent to leaving of the hospital by this witness. The contradictions appearing in the facts given by all the above three witnesses would have been ignored by us, however, in the present case looking to the huge delay in filing the complaint and also for the dubious circumstances existing, these contradictions are of obvious significance.
An effort is made by the prosecutrix to explain the delay by stating that the same occurred on the count of her sickness and also due to shock felt by her. The explanation extended, in our opinion, is neither adequate nor cogent. The prosecutrix is a mature lady of 40 years, she appears to be well educated and a quite confident person. She is in a profession of Journalist from last 20 years and desirous to search her future in India. She was visiting India quite frequently and was also keeping close relations with Firoz. It is really strange that despite of all these factors she did not choose to disclose about ill-happening even to her friend. She also availed treatment for good 7-8 days at reputed hospitals, but did not utter a single word about her plight even to the treating doctors. Such silence, in DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -35- the present set of facts, remains unexplained and as such the corroboration of facts narrated by the prosecutrix are necessary. It is also pertinent to note here that the prosecutrix in her statements stated that her friend Firoz was pursuing her to take necessary action in the matter. It is further relevant to note that Firoz (PW-3) stated that the Guest Lady on 24.12.2007 itself conveyed him that Parbat Singh Rana subjected her to rape. Surprisingly enough, neither the Guest Lady nor Firoz chose to make any complaint of the incident. The Guest Lady on 25.12.2007 itself met the doctors at American Hospital but nothing was disclosed by her to the treating doctors also. She was also visiting the doctors regularly at American Hospital upto 30.12.2007 and then at Aravali Hospital upto 2.1.2008, but she did not choose to tell anything to the treating doctors also. At Aravali Hospital she remained as indoor patient. She was physically examined but the doctors pointed out the disease pertaining to stone in renal artery and also about piles, but not for any injury that may be consequent of rape.
Beside the above, lot of contradictions appears in the facts given by the prosecution witnesses about checking out of the prosecutrix from Pardeshi Guest House and the events taken place DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -36- subsequent thereto. As per the prosecutrix, the Guest Lady and Firoz (PW-3), accused Parbat Singh was present at the guest house when they left the place. Firoz (PW-3), Riyaz (PW-10) and Shivraj Singh (PW-4) stated that the baggage of the Guest Lady was kept in Tempo by accused Parbat Singh. Adequate opportunity was available at this juncture to the Guest Lady to tell truth of the ill-happenings to Firoz, Riyaz and even to Shivraj Singh (PW-4), but she did not choose to do so. Suffice to note that Shivraj Singh (PW-4) stated in quite definite terms that while leaving the guest house the Guest Lady was looking quite cheerful.
The evidence available on record, on its appreciation in their totality, are not having such cogent value which is required to base a conviction. The entire prosecution case is very loosely knitted and we are having reasonable doubt in accepting that and in disbelieving the defence forwarded by the accused.
In result, the appeal succeeds. Accordingly, the same is allowed. The judgment impugned dated 30.4.2008 passed by Additional Sessions Judge (Fast Track) No.1, Udaipur, convicting accused appellant Parbat Singh for the offences punishable under Sections 376 and 450 Indian Penal Code is quashed. The DBCr.Appeal No.344/08 Parbat Singh @ Rana v. State -37- appellant is acquitted from the charges levelled against him. Let he be released forthwith from the State custody, if not otherwise required. (NARENDRA KUMAR JAIN-II),J. (GOVIND MATHUR),J. Mathuria KK/ps.