Rameshwar Dayal v. State of U.P. (Now State of Uttarakhand)

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) (iv) 2 inch x 1 inch contusion of left eyebrow. 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 the place of occurrence accompanied by 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 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 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 was habitual to sexual intercourse, therefore, no credence can be given to her statement that the accused committed sexual intercourse against her wishes.

The argument of learned counsel for the appellants is without any basis as the prosecutrix herself admitted that she was used to sexual intercourse since the year 1989. She also admitted that before arriving in India, she had sexual relationship with three boys, however she categorically denied that she had any sexual relationship with any one during her visit to Bangkok and India. She has not made any false statement nor she has tried to hide the factual position with regard to her sexual relationship. She has admitted the truth but she is categoric in her statement that the accused had exploited the situation as she was not aware of the surroundings of the place and was led to a deserted place by the accused and subjected to forcible sexual intercourse against her wishes. The evidence of the prosecutrix when read as a whole inspires confidence. Moreover, she has no enmity with the accused persons nor had an axe to grind against the accused persons.

While evaluating the evidence of the prosecutrix, we are conscious of the fact that in a case of rape no self respecting woman would come forward to report the matter to the police or approach the court just to make a humiliating statement against her honour. The testimony of the prosecutrix in such a case is vital unless there are compelling reasons, which 15 necessitate looking for corroboration of her statement. The court find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused if her testimony inspires confidence and is found to be reliable and trustworthy. The Apex Court in the case of Radhu Vs. State of M.P. reported in [2008 (2) SCC (Cri) 207] observed as under:- difficult “6. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence direct corroborating evidence.

The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to intercourse, her statement will sexual normally be accepted, even uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary.” In so far as present case is concerned, we find that the testimony of victim is corroborated by the medical evidence and proves the prosecution case beyond reasonable doubt. The testimony seeking corroboration of the statement of the victim would amount to adding insult to injury. We cannot view with doubt and disbelief or suspicion the evidence of a girl who has made complaint of rape or sexual assault. Though the courts while appreciating the evidence of a victim may look for some assurance of her testimony to satisfy its judicial conscience since she is a witness who is interested in the outcome of the charge levelled by her.

However, the evidence of the victim of sexual assault stands almost on par with the evidence of an injured witness, rather the testimony of such a witness is more reliable. In such an incident not only the victim’s privacy and personal integrity is violated but it causes serious psychological and physical harm to her, therefore, the evidence of a victim of 16 sexual assault is entitled to be given great weightage. The corroboration for judicial reliance on her testimony is not a requirement of law but a guidance of prudence only. We cannot lose sight of the fact that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with suspicion. The present one is a case of gang rape where a girl unknown to environment of the area she was visiting, had been subjected to the sexual assault by not only one but three persons and those persons also robbed her articles from her backpack.

The prosecutrix correctly identified all the accused persons during the identification parade conducted in the presence of a Magistrate. It has also come in the evidence that the accused persons were kept with their faces muffled during the entire period they remained in the custody. There was no occasion for the prosecutrix to identify them prior to the date of identification parade. She also correctly identified the articles recovered from the accused persons, which belonged to her and were robbed by the accused persons from her backpack on the date of occurrence. She also correctly identified accused Ramesh and Rameshwar in the court who committed rape upon her, however, she categorically denied that accused Yasin had committed rape upon her. She further stated that the third companion who had committed rape upon her, was not present in the court; however, that was the person who had travelled with the other accused in the bus from Delhi.

She has not made any mistake in identifying the accused persons who were involved in the sexual assault and has not falsely implicated any of them. Learned counsel the appellants further submitted that the prosecutrix had the opportunity to raise an 17 alarm while she was being taken in the rickshaw and she could also run away from the spot. The argument appears to be misconceived. The prosecutrix categorically stated that she was under the impression that she was being taken to the right direction i.e. towards Pratap Nursing Home. She was not aware of the topography of the place; therefore, she did not object or raise any alarm on the way. However, when they took her to a deserted and secluded place where even if she had raised an alarm no one would have come to her rescue. Moreover accused Ramesh threatened her by saying that “he is her death”. Everything was done forcibly with the connivance of all the three accused and the rickshaw puller.

Moreover the accused could be traced on the basis of address which was given by accused Rameshwar in his own writing and the address given by Ramesh to the prosecutrix which she had written in her handwriting otherwise it was not possible for her to know their names and their whereabouts. From the evidence of the prosecutrix, we are of the considered opinion that she has been a victim of sexual aggression. We are of the view that statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. No self respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore it is not necessary to look for corroboration of her testimony. Thus in the case of such crime conviction may be based on sole testimony of the prosecutrix. The Apex Court in the case of State of Punjab Vs.

Gumit Singh and others reported in [1996 (2) SCC 384] made the following observations with regard to the evidence of a victim of sexual assault: - 18 “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, should examine the broader probabilities of a case and not get swayed by minor contradictions insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.

If evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” testimony Learned counsel for the appellants at a last resort submitted that the sentence awarded by the trial court for life imprisonment to the appellants is highly excessive. It is argued that accused Rameshwar and Ramesh were about 25 and 26 years of age respectively at the time of the occurrence and the occurrence pertains to the year 1993, as such, 17 years have 19 passed since the date of occurrence.

The accused appellants have their own family and it would be difficult for the accused persons and their family to face the society, if at this stage they are sent back to jail. On the other hand Mr. Nandan Arya, learned A.G.A. submitted that the sentence of life imprisonment awarded by the trial court to the accused appellants for the offence punishable under Section 376 of the I.P.C. and ten years of rigorous imprisonment and a fine of Rs. 10,000/- for the offence under Section 392 of the I.P.C. are justified as the accused appellants have besmirched our National Pride and made us look down in the eyes of the World. In our culture women are respected by men like their mother and sister and the tourists and guests are always treated as incarnation of God. The barbaric act of the accused is against the entire womanhood. He further pointed out that an American woman, who was visiting our country and more so she had come to visit the most religious place like Haridwar, was subjected to sexual assault in a most barbaric manner showing little concern of her honour.

It surely projects sad reflection on the attitude and indifference of the accused persons towards the society and violation of human dignity of the woman in particular. It is well said that a rapist not only violates the victim’s privacy and personal integrity but causes serious psychological and physical harm to her. In such circumstance, the accused appellants do not deserve to be shown any leniency. Taking into consideration the overall aspects of the matter, we do not consider desirable to interfere or tamper with the sentence awarded by the trial court. Accordingly, we find no merit in the appeal and the same is dismissed. Conviction and sentence awarded by the trial court against the appellants is affirmed. The appellants are on bail, their bail bonds are cancelled and sureties are discharged. They shall be taken into 20 custody forthwith to serve out the sentence awarded by the trial court. The office is directed to send back lower court record for compliance of the order. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG

24.06.2010