IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1688 of 2001 (Old No. 1553 of 1997) 1. Ram Swarup S/o Shri Sunder Lal R/o Lambarpur Par Farm, Shyampur Khadri, P.S. Rishikesh District Dehradun 2. Pappu @ Satya Prakash S/o Shri Anand Prakash R/o Town Rudraprayag, District Chamoli ……….Appellants (In Jail) Versus State of U.P. (now State of Uttarakhand) …………Respondent Shri Lokendra Dobhal, Advocate, present for the appellants. Shri M.A. Khan, and Shri B.S. Parihar, Brief Holders, present for the state. Hon’ble Prafulla C. Pant, J. This appeal , preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C) is directed against the judgment and order dated 29.08.1997 passed by Sessions Judge, Tehri Garhwal, in Sessions Trial No. 11 of 1996 -2- whereby said court has convicted the appellants namely Ram Swarup and Pappu @ Satya Prakash, under section 376 and 323 read with section 34 of Indian Penal Code, 1860 (for short I.P.C.). Each one of them has been sentenced by the trial court to undergo rigorous imprisonment for a period of 10 years under section 376 IPC and rigorous imprisonment for a period of 1 year under section 323 read with section 34 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 19.02.1996 at about 8:45 P.M, P.W. 1 Paola Velencich, an Italian citizen, alongwith her Israeli friend Hava Hobsmann was waiting for a three-wheeler (Vikram/ Tempo) at Rishikesh market so that they may go towards Laxman Jhoola and Ram Jhoola. A three-wheeler (Tempo/Vikram six seater) stopped near them in which three Indian nationals were already in. The aforesaid two foreign nationals boarded the three-wheeler. Hava Hobsmann got down near Ram Jhoola crossing where after two Indian nationals -3- travelers also got down near Ram Jhoola Police Station. P.W. 1 Paola Velencich, complainant was the only traveler in the vehicle alongwith the three-wheeler rikshaw driver and his friend for a journey ahead. When the three-wheeler was heading towards Laxman Jhoola, suddenly the driver diverted and drove it towards Omkaranand Ashram. The complainant realised that it is not the way for Laxman Jhoola and immediately asked the three-wheeler driver to stop the vehicle. However, the driver's friend jumped in the seat behind and assaulted the complainant. The three- wheeler was stopped at some distance and the two (driver and his friend) took the complainant towards the forest. Both of them firstly beat complainant and thereafter committed rape on her, one after another. Prosecution case is that after the complainant was beaten and raped she was left there. The complainant had to walk down to the Ashram in Laxman Jhoola where she was staying. She reached there at about 10:30 P.M.. She remained in disturbed state of mind for three days whereafter she contacted the Italian Embassy and informed about the incident. The Embassy advised her to get lodged first information report with -4- local police. On 23.02.1996, P.W.1 Paola Velencich lodged FIR (Ex. A1) at Police Station Muni Ki Reti at about 14:30 hours. She mentioned in her report that the two accused were aged 22-24 years, and during the talks among themselves one was addressing another as Pappu. On the basis of said report Police prepared chick report (Ex. A6) and registered crime no. 55 of 1996 relating to offences punishable under section 376, 323, 504 I.P.C., against the Pappu, tempo driver, and his colleague. Investigation was taken up by P.W. 8 Sub-Inspector Man Singh Dagar. On the very day Paola Velencich (P.W.1) aged 28 years, was taken to the hospital at Narendra Nagar at 3:15 P.M., where she was medically examined, and 13 simple injuries were found on her person. Thereafter she was taken to the gynecologist P.W.5, Dr. Gulab Gujjar, for examination of her private parts. During investigation on 06.03.1996, complainant Paola Velencich saw one of the two accused in the market near Ram Jhoola crossing and immediately informed the police about him. Said person was accused Ram Swarup who was arrested by the police. Thereafter Pappu @ Satya Prakash was also -5- arrested and a shawl belonging to the complainant which was taken from her by the accused was recovered on 22.03.1996 from the room of the accused Pappu @ Satya Prakash in respect of which recovery memo (Ex. A5) was prepared. A test identification parade was held on 26.03.1996 in New Tehri Jail which was conducted by P.W. 9 Pradeep Kumar, Executive Magistrate. In said parade Pappu @ Satya Prakash was put to identification and in the second round complainant Paola Velencich correctly identified him. Thereafter, complainant was called in Collectorate to identify shawl which was mixed up with other shawl on same day i.e. 26.03.1996. The complainant correctly identified her shawl. Executive Magistrate, prepared TIP report (Ex. A11) of accused Pappu @ Satya Prakash and in respect of property, report (Ex. A14). After preparing site plan and completing investigation, the Investigating Officer submitted charge sheet (Ex. A10) against both the accused Ram Swarup and Pappu @ Satya Prakash for their trial in respect of offences punishable under section 376, 323, 504 I.P.C. -6- 4. On receipt of charge sheet, the Magistrate, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Leaned Sessions Judge, Tehri, on 26.04.1996, after hearing the parties framed charge of offence punishable under section 376 I.P.C., and one punishable under section 323/34 I.P.C., against the two accused Ram Swarup and Pappu @ Satya Prakash. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Paola Velencich, complainant and victim, P.W. 2 Dr. Ashok Rawat, who recorded injuries on the person of the victim, P.W.3 Govind Lal (declared hostile), P.W. 4 Ganesh Lal (declared hostile) P.W.5 Dr. Gulab Gujjar, Gynecologist, who examined the private parts of the victim, P.W.6 Ajab Singh, witness of recovery of shawl, P.W. 7 Jeet Pal (declared hostile) P.W.8 Sub-Inspector Man Singh Dagar, Investigating Officer, and P.W. 9 Pradeep Kumar, Executive Magistrate, who conducted the test identification parade. Oral and documentary evidence was put to the accused in reply to which they alleged same to be false and pleaded that they have been falsely implicated. -7- However, no evidence was adduced in defence. The trial court after hearing the parties found both the accused Ram Swarup and Pappu @ Satya Prakash guilty of charge of offences punishable under section 376, 323 read with section 34 I.P.C.. After hearing them on sentence, each of the convicts was sentenced to rigorous imprisonment for a period of 10 years under section 376 I.P.C., and rigorous imprisonment for a period of 1 year under section 323 read with section 34 I.P.C. Aggrieved by said judgment and order dated 29.08.1997, the two convicts filed this appeal before Allahabad High Court on 05.09.1997 where it was admitted on 09.09.1997. The appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000) for its disposal. 5. Before further discussion, this Court thinks it just and proper to mention the injuries found on the person of complainant Paola Velencich, who was medically examined by P.W.2 Dr. Ashok Rawat who prepared injury report (Ex. A2) on 23.02.1996 at 3:15 P.M. The injuries -8- recorded by said medical officer are being reproduced below:- (i) Scattered abrasion spread over area 24cmx20cm. These multipleabrasion are reddish brown in colour. Below the scapula on both sides .Fairly densely present. (ii) Multiple abrasion on right side below knee joint point 7cmx5cm. Reddish in colour present (iii) Left side multiple abrasion, 21cmx3cm. Reddish in coloration present. (iv) Below left wrist joint 5cmx5cm reddish brown coloration present . (v) Abrasion with reddish coloration little left hand finger 1cmx.3cm. (vi) Abrasion of .5cmx.1cm. Reddish in coloration on -9- ring finger of left hand. (vii) Abrasion right arm 3cmx.5cm on wrist joint reddish coloration. (viii) Abrasion reddish brown 2cmx.3cm on back right side neck, reddish in coloration present over rest of neck anterior part. (ix) Left eye contusion 3.5cmx3cm reddish brown coloration present on both eye lids. (x) Right eye contusion 3cmx.4cm. Reddish coloration present. (xi) Abrasion 5cmx.2cm over left side eye lid medially, reddish brown coloration. (xii) Abrasion over anterior nose .5cmx.2cm. Brown reddish coloration present. -10- (xiii) Abrasion reddish coloration present over chin 1cm below lip. Area covered by abrasion 2cmx.5cm. 6. In the opinion of P.W.2 Dr. Ashok Rawat the injuries were 2-3days old and the same were simple in nature. At the end of his report (Ex.A2) it is mentioned that the said medical officer referred victim (complainant) to gynecologist P.W.5 Dr. Gulab Gujjar, on the same day i.e. 23.02.1996, examined the complainant Paola Velencich, at about 4:00P.M. She observes in her report (Ex.A3) that hymen was torned. Vagina admits two fingers easily. She was advised X-ray examination of the wrists and also got sent vaginal swab and smear to the pathologist. After receiving pathologist's report, P.W.5 Dr. Gulab Gujjar prepared supplementary report (Ex. A4) on 25.02.1996, and recorded that no definite opinion abut rape can be given. 7. P.W.1 Paola Velencich stated before the trial court that on 19.02.1996 at about 8:45P.M., she -11- alongwith her Israeli friend was waiting for a transport as they had to go towards the Laxman Jhoola and Ram Jhoola. A tempo (three wheeler) stopped near them in which the two boarded. There were already three persons in the vehicle. According to P.W.1 Paola Velencich, her Israeli friend got down at Ram Jhoola and the other passengers got down near police station. Thereafter, only the complainant and two accused remained in the Tempo (three-wheeler).She identified the two accused in the court also. She further told that the accused turned and took the vehicle towards Omkar Nand Ashram via Muni ki Reti. On this, she realised that the accused are not taking towards Laxman Jhoola and asked them to stop the vehicle. But the accused Ram Swarup jumped on the rear seat and started assaulting the complainant. They took the vehicle to some distance and thereafter dragged the complainant to forest. There, both the accused beat the complainant. They forced her to have sexual intercourse. P.W.1 Paola Velencich further narrated that each of the accused committed rape on her one after another. She further told that while one was committing rape the other was -12- holding her by her shoulders. The victim has further told that after committing rape, the accused left her there in the jungle. She further states that she came on foot to the Ashram where she was staying. She further told the trial court that after reaching the Ashram she lay down in the bed. She was unable to move comfortably as she had suffered injury. After three days, she contacted her Embassy (Italian Embassy) from where she received the message that she should contact the local police station for making a report. Thereafter, according to the witness she prepared a written report (Ex. A1) and gave at Police Station Munni Ki Reti on 23.02.1996. PW.1 Paola Velencich further told that thereafter she was medically examined. She further stated that on 06.03.1996, when she was coming from Rishikesh towards Laxman Jhoola she noticed one of the accused standing. On this, she informed the police, and the police reached in a jeep. In the court also she identified accused Ram Swarup as the person whom she noticed on that day. According to the witness Ram swarup was arrested by the police on her pointing out. P.W.1 further told the court that on 26.03.1996 she was -13- called to New Tehri for identification where she identified her shawl. She further told that on that very day she went to jail and identified the accused Pappu correctly, in the test identification parade. 8. The above testimony of the complainant P.W.1 Paola Velencich is not only natural, trust worthy but also supported by the injuries she had suffered in the incident, and also by the statement of P.W.9 Pradeep Kumar and Executive Magistrate who corroborated her testimony as to the identification. From the statement of P.W6 Ajab Singh, it is also proved on record that a shawl belonging to the victim was recovered from the room of accused Pappu @ Satya Prakash on 22.03.1996, with regard to which recovery memo (Ex.A5) was prepared. Having reassessed evidence on record, this Court concures with the view taken by the trial court, that the prosecution has successfully proved the charge of offence punishable under section 376 I.P.C., and one punishable under section 323/34 I.P.C., against both the accused/appellants Ram Swarup and Pappu @ Satya Prakash. -14- 10. On behalf of the appellants it is argued that the FIR is delayed by three days, as such the prosecution case should not be believed. Had there been no explanation for the delay in FIR, factum of delay in FIR could have been considered as the factor creating doubt as to the truthfulness of the prosecution story. But in the present case complainant is a Foreign National. Naturally, after the rape committed on her by two person, she must be in condition of shock and only when she contacted the Italian Embassy and received instruction from there to get lodged report with local police she could do so. In the opinion of this Court, said explanation is sufficient and creates no doubt in the prosecution story. 11. Next submission advanced on behalf of the appellants is that P.W5 Dr. Gulab Gujjar has mentioned in her report (Ex.A4) that no definite opinion abut rape can be given. As such , on its basis it is argued that the statement of P.W.1 Paola Velencich should not be believed that she was raped. In this connection, it is further pointed out that though the complainant aged 28 years, is an -15- unmarried woman but her hymen was torned, and it is further mentioned by the medical officer that her vagina admitted two fingers easily, as such allegations of rape made by her should not be believed. Having gone through the entire evidence on record,this Court does not find any force in the submission advanced on behalf of the appellants. Merely for the reason that the girl is not virgin it cannot be said that any one has license to rape her. It is pertinent to mention here that victim had no enmity with any of the accused nor she knew them before the date of incident. In the circumstances, merely for the reason that P.W.5 has stated she could not give definite opinion as to rape, does not shake testimony of P.W.1 Paola Velecich . 12. Shri Lokendra Dobhal, learned counsel for the appellants drew attention of this Court to the cases of Sudhansu Sekhar Sahoo vs. State of Orissa (2003) SCC (cri.) 1484, Devendra Singh & others vs. State of Himanchal (2004) SCC (cri.) 185 and Bibhishan vs. State of Maharashtra (2008) 3SCC (cri.) 163 and it is argued that since there were no injuries on the private parts of the -16- victim as such the testimony of the complainant should not be believed. I have gone through said case reports. In the case of Sudhansu Sekhar Sahoo (supra) itself it is clearly mentioned that even sole testimony of the victim is sufficient to hold the accused guilty, provided the testimony is natural and convincing. In the case of Devendra Singh(supra) there were no injuries on the person of the victim unlike in the present case. This Court has already quoted above 13 injuries on the person of the victim in the present case. The facts of Bibhishan are also totally different to the present case. 13. Lastly, it is contended that act of fondling and act of commission of rape are two different acts and the same should not be confused. On going through evidence on record, this Court finds that it is nobody's case that it is a case of fondling. As to to expression 'sexually abused' mentioned in FIR P.W.1 Paola Velencich has explained in her testimony what she meant by the expression and what had happened with her. P.W.8 Sub-Inspector Man Singh Dagar, Investigation Officer, has stated in his statement -17- that during interrogation he had to taken help of a translator in recording the statement of the complainant (victim). 14. For the reasons as discussed above, this Court finds no illegality in the impugned order passed by the trial court so far as it relates to the conviction of the accused/appellants Ram Swarup and Pappu @ Satya Prakash relating to offence punishable under section 376 and one punishable under section 323 read with section 34 IPC. Learned counsel for the appellants submitted that atleast the sentence awarded to the appellants be reduced. In view of the minimum sentence provided under section 376 IPC, this Court cannot take lenient views except to reduce the sentence to 7 years rigorous imprisonment under section 376 IPC. 15. Accordingly, this appeal is dismissed and conviction of the appellants under section 376 and one punishable under section 323 read with section 34 I.P.C., is affirmed. The sentence awarded by the trial court in respect of offence punishable under section 323/34 IPC is not -18- interfered with. However, the sentence awarded by the trial court in respect of offence punishable under section 376 IPC is reduced to rigorous imprisonment for a period of 7 years for each of the appellants. The appellants are on bail. Their bail is cancelled. Lower court record be sent back to make the appellants serve out, remaining part of the sentence as modified by this Court. (Prafulla C. Pant, J.) Dt. 21.07.2010 Parul