Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1634 of 2001 Old Criminal Appeal No. 677 of 1996 Dated of Decision: 24 .06.2010 Rameshwar Dayal …Appellant Versus State of U.P. (Now State of Uttarakhand) …Respondent Present: Mr. Pankaj Miglani, learned amcus curiae for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Connected with Criminal Appeal No. 1376 of 2001 Old Criminal Appeal No. 119 of 1998 Ramesh Kumar …Appellant Versus State of U.P. (Now State of Uttarakhand) …Respondent Present: Mr. Parikshit Saini, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Nirmal Yadav, J. Abovementioned appeals are being disposed of by this common judgment as both the appeals are arising out of the same judgment and order dated 27.02.1996 passed by the Ist Additional Sessions Judge, Haridwar in Sessions Trial No. 172 of 1993. Appellants-Rameshwar Dayal, Ramesh Kumar stood trial for the offences under Sections 376, 392 and 411 of the Indian Penal Code, 1860 (in short I.P.C.), while accused Yasin was tried for the offence under Sections 392 and 411 of the I.P.C. Accused Rameshwar Dayal and Ramesh Kumar have been convicted and sentenced under Section 376 of the I.P.C. to 2 life imprisonment and convicted and sentenced under Section 392 of the I.P.C. to ten years rigorous imprisonment each and a fine of Rs. 10,000/- each. In default of payment of fine they have further been ordered to undergo two years rigorous imprisonment. Accused Yasin was convicted under Section 392 and sentenced to ten years rigorous imprisonment and a fine of Rs. 10,000/-. In default of payment of fine he has further been ordered to undergo two years rigorous imprisonment. Appeal on behalf of accused Yasin stands abated vide order-dated 16.11.2009. Brief facts of the case as culled out from the record are that Katherine Eldridge D/o David Eldridge, R/o U.S.A. was known to Vimla Starjal cousin sister of Dr. Pratap Singh R/o Roorkee. Said Vimla had given reference of Dr. Pratap’s Nursing Home at Roorkee to Katherine Eldridge so that she could go and stay with him. She had told Katherine that she could ask the address of Pratap Nursing Home from any Rickshaw puller. After visiting several countries Katherine Eldridge landed at Delhi Airport on 12.02.1993 on tourist visa. On 27.02.1993 she proceeded for Roorkee by bus at 3:15 p.m. Accused Ramesh occupied the seat next to Katherine Eldridge while Rameshwar Dayal and his another companion sat on the back seat. Ramesh tried to broach the conversation with Katherine Eldridge but she did not understand Hindi language, therefore, Ramesh tried to make her understand with gestures that she could stay in his guesthouse but she refused. Accused Rameshwar wrote his address on a plain paper in a book with Katherine Eldridge, which is Ex. Ka-1. The bus reached Roorkee at 8:30 p.m. Ramesh picked up the backpack of Katherine Eldridge and put the same in a rickshaw parked near the bus. Katherine Eldridge mistook that accused Ramesh was trying to help by getting the conveyance arranged for her. Katerine Eldridge told the rickshaw puller that she wanted to go to 3 Pratap Nursing Home. Said rickshaw puller was accused Yasin. Accused Ramesh also boarded the rickshaw with her. Katherine Eldridge thought that Ramesh was also going in the same direction, therefore, she enquired as to whether they were going to Pratap Nursing Home to which Ramesh replied with a nod. Accused Rameshwar Dayal and his other companion boarded another rickshaw and followed Katherine Eldridge’s rickshaw. Both the rickshaws were going on the side of canal. They stopped the rickshaws at a very secluded place. Where Katherine Eldridge was forcibly taken out of the rickshaw by accused Ramesh and Rameshwar Dayal and then Ramesh uttered the words “I am your death”. Thereafter Ramesh and Rameshwar took her to a place where there were no trees or shrubs and no houses nearby. The third companion of these accused took away the backpack and searched the belongings of Katherine Eldridge in the backpack. Thereafter accused Rameshwar forcibly stripped Katherine Eldridge of her clothes and committed forcible sexual intercourse with Katherine Eldridge against her consent. When Rameshwar was committing rape upon her, accused Ramesh was holding her from both the hands and was kneeling over her chest from top and sucking her cheeks. When Rameshwar completed the act of intercourse, he joined other two companion who were opening her backpack and thereafter the third companion who had accompanied Rameshwar from Delhi in the bus also committed forcible sexual intercourse upon Katherine Eldridge against her wishes. He then returned near the backpack, which was at a distance of ten meters from Katherine Eldridge. Thereafter accused Ramesh committed rape upon Katherine Eldridge against her wishes. During the course of intercourse Katherine Eldridge received bruises on cheeks and thighs. Thereafter she was made to put on her dress. Katherine Eldridge went near her backpack and found that the accused persons had taken out the articles from her backpack, which constituted three thousand 4 rupees of Indian Currency, seven hundred American dollar, seven hundred American travellers cheque of the denominion of one hundred dollar each, one Nikon camera with zoom lense, one wristwatch, one walkman with head phone, one mouth harmonica, one bath-pack containing toothbrush etc, one small purse containing identification paper and exchange receipts, one bamboo flute (Bansuri), one pen, one small knife, one cigarette lighter and some other articles. The aforesaid articles were distributed by the accused amongst themselves and few articles, which could not be distributed and her clothes, shampoo etc were put back in the backpack. She was taken back in the same rickshaw up to the bridge to the canal by the accused persons, where Ramesh and Rameshwar and their third companion asked accused Yasin, the rickshaw puller, to take her to Pratap Nursing Home and they all left in the opposite direction. Thereafter accused Yasin took Katherine Eldridge in his rickshaw for a distance of 100 yards and refused to take her further, and asked her to go on foot. Meanwhile a jeep came as the jeep driver had seen the rickshaw puller fighting with Katherine Eldridge, he enquired as to what was the problem. Katherine Eldridge disclosed to him that she had been raped and robbed. The jeep driver took her and rickshaw puller Yasin to the police station but he dropped her outside the police station and went away. Katherine Eldridge went inside the police station alongwith Yasin. She disclosed all the facts to the police officials who asked her to put her version in black and white; thus, she recorded her version on a paper, which is Ex. Ka-2. On the basis of Ex. Ka-2, Chick F.I.R. Ex. Ka-17 was recorded on 28.02.1993 at 5:00 a.m. G.D. entry in this respect is Ex. Ka-18. The underwear of Katherine Eldridge was taken into possession by the lady police vide memo Ex. Ka-3. Thereafter Katherine Eldridge was taken to the hospital where she was medico legally examined by Dr. Anjali Srivastava PW-2, the report is Ex. Ka-4. On the basis of pathology report and 5 report of radiologist, she submitted her supplementary report Ex. Ka-5. As per the report of the doctor (Ex.Ka-4), on local examination, pubic hair was present, labia fully developed and the victim was conscious, oriented, fully coherent and talking. The following injuries were found on the person of Katherine Eldridge: - (i) 1 inch x 1 inch contusion just lateral to right angle of mouth. (ii) 1 ½ inch x 1 inch contusion of 2 c.m. lateral to left angel of mouth. (iii) 2 inch x 1 inch contusion of left eyebrow. (iv) Few scratch marks present on the internal aspect of right thigh. (v) Scratch marks about 1 inch long present just behind the anus on right side. (vi) Scratch mark about 1 inch long present 1 ½ inch postero lateral to anus on right thigh. (vii) Scratch marks 1 inch long about 6 inch lateral to anus on right thigh. (viii) Scratch mark 1 inch long 4 inch postero lateral to anus. Introitus was admitting two fingers easily. Hymen found torn and heeled. Uterus normal size formices was found clean. In an area of about 1 inch x ½ inch matting was present in bunch of pubic hair on right side just lateral to introitus. All the injuries were fresh and caused by blunt object. Injuries on thigh were also found fresh and caused by sharp object. As per the pathological report Ex. Ka-16 given by Dr. S.P. Ahuja PW-10, the Pathologist, dead spermatozoa were found in the vaginal smear of Katherine sent by Medical Officer 6 (Female Section) Civil Hospital, Roorkee. As per the Radiologist report Ex. Ka-15, age of Katherine Eldridge was about 19 years. After considering the report of Pathologist, Dr. Anjali Srivastava submitted her supplementary report Ex. Ka-5 and opined that the pathology report is suggestive of sexual intercourse and the patient was used to sexual intercourse. She further opined that all the injuries on the person of Katherine Eldridge could possibly be caused on 27th February 1993 in between 9:00 p.m. to 11 p.m. The injuries no. 1 and 2 on her face could be by sucking and injury no. 3 could be caused by striking some hard object. The scratch on the right thigh could be possible by scratching of nails. Investigation was undertaken by Inspector Shailendra Bhardwaj. On the basis of address written on piece of paper Ex. Ka-1 handed over by Katherine Eldridge, Sub Inspector R.K. Sharma was sent to Delhi in search of accused Ramesh and Rameshwar Dayal. Investigating Officer Shailendra Bhardwaj inspected the place of occurrence where he found some articles belonging to complainant Katherine Eldridge, lying there. He came back to the hospital and recorded the statement of Katherine Eldridge. Thereafter he went to the place of occurrence accompanied by the complainant. He took into possession the articles lying at the place of occurrence. Investigating Officer Shaildendrra Bhardwaj could not continue with the investigation as he was admitted in the hospital being sick, therefore, rest of the investigation was conducted by S.S.I. Gopal Singh. On the pointing out of the complainant, site plan Ex. Ka-36 of the place of occurrence was prepared. On 5th March 1993 on receipt of secret information that one person having some foreign currency and a camera, was trying to sell the same, the police reached Shankaracharya 7 Chowk and joined public witnesses, namely, Isam Singh and Om Pal. Accused Rameshwar was seen coming and on the pointing out of the secret informer after some chase, he was apprehended and disclosed his name as Rameshwar. On his personal search one Nikon camera, three camera rolls and three notes of one hundred dollar each and two travellers cheque of one hundred dollar each and signed as Katherine and two notes of one hundred each of Indian currency were recovered. All the above articles were taken into possession vide memo Ex. Ka-9, copy of which was given to the accused and he was directed to keep his face muffled. On 9th March 1993 Sub Inspector Dharm Pal Singh, posted at Roorkee and was in search of accused in this case, reached Bahadarabad and received secret information that accused Ramesh was staying with his brother in village Jawalapur and would be boarding bus at bridge Jathwada. Two independent witnesses, namely, Rakesh and Mahak Singh were joined in the police party. The police party reached near bridge Jathwada and after some time accused Ramesh was seen coming. He was encircled by the police party and apprehended. On his personal search two traveller cheques of one hundred dollar denominion and having signature of Katherine, one note of hundred dollar and 140 Indian rupees, one coin of nine cent and two coins of five cent, four quarter dollar and one dime, six Thai bath, and one wristwatch without chain were recovered from him and were taken into possession vide memo Ex. Ka-6. The face of the accused was muffled and he was directed to remain with muffled face. On 10th March 1993 at 2:00 p.m. Sub Inspector R.K. Sharma was informed by security guard Control Room 9, of Roorkee University that one person had approached for exchanging one foreign currency in University Branch of State 8 Benk of India. On receipt of the information police party went and stood near welfare center gate of the University. On the way two public witnesses Madan Mohan Singh and Pooran Singh were joined. On the pointing out of the secret informer accused Yasin rickshaw puller was apprehended. On his personal search one traveller’s cheque of 100 dollar having signature of Katherine was recovered from him and was taken into possession vide Ex. Memo Ka-11. On the basis of statement of Rameshwar third companion accused Rajendra was searched but he was not found. The Investigating Officer prepared the site plan with regard to the place of arrest of all the three accused namely, Rameshward, Ramesh and Yasin which are Ex. Ka-38, 39 and 40 respectively. On 12th March 1993 test identification parade was conducted before the Magistrate and complainant Katherine Eldridge correctly identified accused Ramesh and Rameshwar. Articles recovered from two accused persons were also identified in the presence of the Magistrate. The proceedings under Section 82-83 of the Cr.P.C. were undertaken against accused Rajendra. On completion of the charge sheet, final report under Section 173 of the Cr.P.C. was put in the court. Accused Ramesh and Rameshwar were charge sheeted for commission of the crime under Sections 376, 392 and 411 of the I.P.C. while accused Yasin was charge sheeted under Sections 392 and 411 of the I.P.C., to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined complainant Katherine Eldridge as PW-1, the victim herself. PW-2 Dr. Anjali Srivastava medico legally examined the victim while PW-9 Anil Kumar is the Radiologist and PW-10 S.P. Aahuja is the Pathologist who examined the vaginal smear of 9 Katherine and found the spermatozoa vide his report Ex. Ka-16. PW-5 Sub Inspector R.K. Sharma, who was authorized by the Investigating Officer to search for the occurrence, arrested accused Rameshwar on 5th March 1993 in the presence of PW-6 Om Pal Sharma, a public witness. He also arrested accused Yasin on 10th March 1993 in the presence of PW-6 Om Pal Sharma. PW-3 Sub Inspector Dharam Pal arrested accused Ramesh on 9th March 1993 in the presence of a public witness PW-4 Mahak Singh and one Rakesh. PW-14 Constable Ram Sharan, PW-15 Constable Ved Pal, PW-16 Constable Rishipal Singh and PW-13 Suresh Kumar are all the witnesses who have deposed that the accused were made to keep their faces muffled. They also proved G.D. report Ex. Ka-24, Ex. Ka-25, Ex, Ka-26, Ex. Ka-28 and Ex. Ka-29 with regard to the arrest and keeping Rameshwar with muffle face. PW-17 Sulekh Chand, PW-18 Constable Gajendra Singh also proved G.D. report Ex. Ka-30 and Ex. Ka-31 with regard to the arrest and keeping the face of accused Ramesh muffled. PW-12 Constable Ramesh Chandra proved that accused Rameshwar was produced before the Additional Chief Judicial Magistrate, Roorkee with muffled face on 6th March 1993 and in this respect G.D. report is Ex. Ka-20. On 10th March 1993 accused Ramesh was produced before the Additional Chief Judicial Magistrate, Roorkee. G.D. report is Ex. Ka-22. PW-24 Constable Rambeer Singh has proved G.D. No. 42 to the effect that all the accused were kept with muffled faces in the police station. PW-8 Shreedhar Prasad is the Magistrate, who had got the identification parade of the accused conducted before complainant Katherine Eldridge. Identification memo is Ex. Ka-13. He also got the articles recovered from the accused persons identified by Katherine Eldridge vide memo Ex. Ka-14. PW-20 Bhullan Prasad is the person who had brought the articles identical to the articles which were allegedly recovered from the accused persons and 10 produced those articles before the Magistrate on 12th March 1993 for identification of recovered articles. He did not allow any person to see those articles prior to the identification parade. PW-22 Raj Pal Sharma is the person who had produced the recovered articles before the Magistrate after the identification parade. He had submitted those articles in sealed parcel and deposited the same back in the Maalkhana. He proved the report Ex. Ka-35 in this respect. PW-11 Bhanwar Singh proved Chick report Ex. Ka-17 and general diary in this respect is Ex. Ka-18. He also proved the memo Ex. Ka-3 with regard to the underwear of complainant Katherine Eldridge being taken into possession. He also proved G.D. entry Ex. Ka- 19 with regard to the arrest of accused Rameshwar on 5th March 1993 and keeping him with muffle face. He also proved G.D. entry Ex. Ka-20 for sending accused Rameshwar to jail on 6th March 1993 and G.D. entry Ex. Ka-21 vide which accused Ramesh was sent to jail on 10th March. He also proved G.D. No. 22 when he was produced before the court on 10th March 1993 from the jail and during this period he was directed to remain with muffle face. He also proved Ex. Ka-23 vide which the recovered articles were sent to the Maalkhana. PW-25 Inspector Shailendra Bhardwaj and PW-23 Gopal Singh Siddhu are the Investigating Officers. PW-23 Gopal Singh Siddhu prepared the site plan of the place of occurrence Ex. Ka-36 and also proved the memo Ex. Ka-37 vide which the articles were taken into possession from the place of occurrence. When examined under Section 313 Cr.P.C. the accused denied entire incriminating evidence put to them by the prosecution and pleaded false implication. In defence the accused produced DW-1 Shadi Ram Chauhan, DW-2 Constable Ram Kumar, DW-3 Constable Chitamani, DW-4 Jaswant Singh, 11 DW-5 Rakesh Kumar and DW-7 Head Constable Suraj Bhan, however none of these witnesses supported the accused in any manner. PW-6 Om Prakash is the brother of accused Rameshwar who stated that accused was arrested by the police on 4th April 1993 from his house. We have heard Mr. Parikshit Saini, learned counsel for appellant-Ramesh and Mr. Pankaj Miglani, who appeared as amicus curiae for appellant-Rameshwar Dayal, Mr. Nandan Arya, learned A.G.A. for the State and perused the material available on record. The prosecution case mainly rests on the testimony of victim Katherine Eldridge PW-1, a young girl of 19 years who left her country on 12th February 1993 on Tourist Visa and landed in the capital of India after visiting some other countries. It is a matter of great regret that she had to undergo the most unfortunate experience of her life at Roorkee which is situated in the close vicinity of Haridwar, the most sacred place in India. The accused have committed the most heinous crime by violating the personal integrity and privacy of a tourist. In our culture a guest is considered like God as it is said “vfrfFk nsoks Hko%”. But, the accused have totally put to shame the culture and customs of our Nation and have acted in a most brutal manner by devastating the chastity of a foreign tourist who had come to visit Haridwar, where people come to wash their sins. However, before she could reach Haridwar she was ravaged in a most barbaric manner by the accused persons. Learned counsel for the appellants argued that the prosecutrix is an American citizen and as per the standards of the American society having sexual relationship by an unmarried girl or a woman with any person is not considered to be illegal as it is looked upon in the Indian Society. Thus, it is argued that the trial court has not considered the testimony of the prosecutrix as per cultural 12 standards of American Society. The argument of learned counsel for the appellants does not appeal to us. In the present case, the prosecutrix in her deposition has been categoric, clear and unequivocal that the accused committed forcible sexual intercourse with her against her wishes. PW-1 Katherine Eldridge has given the manner of occurrence in detail while deposing before the court. She has categorically stated that accused Ramesh, Rameshwar and their third companion (Rajendra) had followed her from Delhi in the bus. Ramesh tried to enter into conversation with her but due to language barrier she could only understand that he was asking to stay in guesthouse. Rameshwar had written his address on a plain paper in a book which Katherine Eldridge was carrying with her. Ramesh also gave his address to her, which was written by Katherine Eldridge in her own writing. The said writing is Ex. Ka-1 on the record. On the basis of the said information both the accused were traced by PW-5 R.K. Sharma who was posted as Duty Officer in Police Station Roorkee Kotwali and was authorized by Investigating Officer Inspector Shailendra Bhardwaj. Katherine Eldridge identified all the accused, namely, Ramesh as well as Rameshwar and Yasin during the identification parade before the Magistrate which was conducted in the jail on 12th March 1993. She also correctly identified all articles belonging to her recovered from the accused persons. This witness categorically stated that she had refused to take any help from both the accused Ramesh and Rameshwar. However, accused Ramesh himself arranged the rickshaw for her and boarded the rickshaw along with her. She did not suspect any foul play thinking that accused Ramesh was helping her to arrange the conveyance. She categorically explained to the rickshaw puller that she had to go to Pratap Nursing Home. Since accused Ramesh boarded the rickshaw with her, she thought that accused Ramesh had also to go in the 13 same direction. She enquired from him that whether they were proceeding towards ‘Pratap Nursing Home’, then accused Ramesh replied with a nod. On his reply she got convinced that they were proceeding in the right direction. Accused Rameshwar and other companion Rajendra also followed Katherine’s rickshaw. Both the rickshaw started going by the side of a canal, the accused stopped the rickshaw at a deserted and secluded place and forcibly de-boarded the victim from the rickshaw. They took her forcibly to a deserted place and thereafter accused Rameshwar stripped Katherine Eldridge of her clothes and committed rape upon her. During that time accused Ramesh was kneeling over her and started sucking her cheeks. Thereafter third companion i.e. Rajendra committed forcible sexual intercourse upon her and lastly accused Ramesh committed rape upon her against her wishes. From her statement, it is evident that a helpless lonely foreign young girl who was unaware of the surroundings of the area, was taken to the deserted place under a conspiracy by the accused as she was all the time under the impression that they were helping her to reach to the destination i.e. Pratap Nursing Home. The intention of accused Ramesh is also revealed from the fact when he stated that “he was her death”. All the three accused raped her one after the other which is certainly very inhuman and barbaric act on the part of the accused persons. There is not an iota of evidence nor any circumstance has been pointed out by the learned counsel for the appellants that the sexual intercourse with the prosecutrix by the accused was done with her tacit consent. We have gone through the entire statement of the prosecutrix and we do not find any contradictions or discrepancy in her statement. Her statement is fully corroborated by the medical evidence as several injuries have 14 been found on her face, thighs and other parts of the body including nail scratch marks. As per the supplementary report of Dr. Anjali Srivastava PW-2, spermatozoa were also found in the vaginal smear. The pathologist report Ex. Ka-16, has clearly suggested of sexual intercourse. Learned counsel for the appellants argued that as per the statement of Dr. Anjali Srivastava PW-2, the prosecutrix