# Mani Raj Singh Rathore v. The State of U.P

- **Citation:** (2012) 3 ILRA 1441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-17
- **Case number:** Connected with Criminal Appeal No. 4165 of 2005
- **Bench:** Rakesh Tiwari, Anil Kumar Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mani-raj-singh-rathore-v-the-state-of-u-p-42454
- **Pages:** 16

## Headnote

Sri R.A. Mishra
A.G.A.

Crimianl Appeal-against punishment of
life
imprisonment-punishable
under
section 376 (2) (g)-on ground of in
ordinate delay in lodging F.I.R.-victim a
German
Lady-stayed
in
hotel-two
accused persons offers "Lussi" with
intoxicated substance and ravished her
on the roof of the hotel-prosecution
story fully supported by statement of
victim-after
getting
rid
from
their
clutches-with help of another foreign
lad-as
escaped
herself
by
shifting
another hotel-hence can not be termed
in
ordinate
delay-punishment-heldproper-requires no interference .

Held: Para- 31 and 40

In the facts and circumstances of the
case we are of the considered opinion
that the trial court has rightly held that
being
a
foreign
lady
without
any
companion
the
victim
was
under
1442 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

dilemma and confused about her future
course of action. She on pondering over
the matter after shifting from Tourist
Rest House to Hotel Ajay on 5.7.2001
decided to lodge the FIR as such there is
no unreasonable delay in reporting the
crime to the police.

It also appears that there was another
foreign lady also staying in the rest
house, who met the victim in the
morning. She on coming to know about
the incident of the previous night from
the victim helped her in shifting to hotel
Ajay, where she also shifted along with
her. There is nothing unnatural in the
behaviour of the victim in confiding in
another woman about being raped by
the accused persons when she asked
about the commotion in the night and in
discussing the pros & cons with her
regarding future course of action. The
victim was in a foreign country and there
was none on whom she could have
placed
reliance.
She
deliberate
the
matter during the day and ultimately
decided to lodge the FIR against the
accused persons after she could gather a
courage on 5.7.2001. Thus we find that
there is no inordinate delay in the
lodging the report of the crime with the
police.
The incident
took
place
on
3.7.2001.
Case Law discussed:
AIR 1996 SC 1393; AIR 2003 SC 4684

## Text

_Characters 0–39,992 of 54,605. This is a partial read: ask again with offset=39992 for what follows._

3 All] Mani Raj Singh Rathore V. The State of U.P.

1441
be appropriate to reopen the case against
three accused persons, who have been
acquitted, but on the basis of the
evidences on record, there is no doubt that
the fire was shot by the appellant Goonga
@ Noor Ilahi, which caused serious
injuries, fatal in nature and may result into
the death of the injured, Altaf Husain,
therefore, the appellant has rightly been
convicted under Section 307 of the IPC
by the Trial court.

12. For the aforesaid reasons, I do
not find any reason to release the
appellant on probation and having regard
to the nature of the injuries, it is not a fit
case for conversion of the case from
Section 307 IPC into 324 IPC and to
impose fine. Justice demands that the
crime should not go unpunished.

13. In the result, the Appeal fails and
is dismissed. The order dated 14.7.1982
passed by the Sessions Judge (Non
Metropolitan Area) Kanpur convicting
and sentencing the appellant, as aforesaid,
is affirmed. The appellant is on bail.
C.J.M., Kanpur Dehat is directed to take
the appellant into custody and send him to
jail for serving out the sentence awarded
by the trial court and affirmed by this
Court.

14.

Office
is
directed
to
communicate this order to the C.J.M.
concerned for compliance within a period
of one week
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.10.2012

BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

Criminal Appeal No. 3881 OF 2005
Connected with
Criminal Appeal No. 4165 of 2005

Mani Raj Singh Rathore son of Rishi
Singh Rathore resident of village B-2/36,
Tourist
Restaurant,
P.s.
Bhelupur,
District Varanasi.

 ...Applicant
Versus
The State of U.P.
 ...Respondents

Counsel for the Petitioner:
Sri Ashok Mehta
Sri Brijesh Sahai
Sri Shiv Kumar Pal

Counsel for the Respondents:
Sri R.A. Mishra
A.G.A.

Crimianl Appeal-against punishment of
life
imprisonment-punishable
under
section 376 (2) (g)-on ground of in
ordinate delay in lodging F.I.R.-victim a
German
Lady-stayed
in
hotel-two
accused persons offers "Lussi" with
intoxicated substance and ravished her
on the roof of the hotel-prosecution
story fully supported by statement of
victim-after
getting
rid
from
their
clutches-with help of another foreign
lad-as
escaped
herself
by
shifting
another hotel-hence can not be termed
in
ordinate
delay-punishment-heldproper-requires no interference .

Held: Para- 31 and 40

In the facts and circumstances of the
case we are of the considered opinion
that the trial court has rightly held that
being
a
foreign
lady
without
any
companion
the
victim
was
under
1442 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

dilemma and confused about her future
course of action. She on pondering over
the matter after shifting from Tourist
Rest House to Hotel Ajay on 5.7.2001
decided to lodge the FIR as such there is
no unreasonable delay in reporting the
crime to the police.

It also appears that there was another
foreign lady also staying in the rest
house, who met the victim in the
morning. She on coming to know about
the incident of the previous night from
the victim helped her in shifting to hotel
Ajay, where she also shifted along with
her. There is nothing unnatural in the
behaviour of the victim in confiding in
another woman about being raped by
the accused persons when she asked
about the commotion in the night and in
discussing the pros & cons with her
regarding future course of action. The
victim was in a foreign country and there
was none on whom she could have
placed
reliance.
She
deliberate
the
matter during the day and ultimately
decided to lodge the FIR against the
accused persons after she could gather a
courage on 5.7.2001. Thus we find that
there is no inordinate delay in the
lodging the report of the crime with the
police.
The incident
took
place
on
3.7.2001.
Case Law discussed:
AIR 1996 SC 1393; AIR 2003 SC 4684

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. We have heard Sri Ashok Mehta,
learned counsel assisted by Sri Brijesh
Sahai for the appellant, Sri R.A. Mishra,
learned AGA for the State and perused the
record.

2. The appellants in these two
connected appeals have challenged the
judgment and order dated 30.8.2005 passed
by
the
Additional
District
Sessions
Judge/Special Judge (E.C.Act) in S.T.
No.65 of 2002 (State Vs. Mani Raj Singh
and another) whereby, both the appellants
have been convicted for the offence
punishable under section 376 (2) (g) IPC
and sentenced each of them to undergo
imprisonment for life and fine of Rs.1 lac
each with default stipulation.

3. The prosecution story in a nut shell
is that a German lady (hereinafter referred
to as the 'victim') was a visting tourist. A
written report was submitted by her to the
Officer-in-charge, Police Station Bhelupur,
district Varanasi on 5.7.2001 at 8.20 p.m.
alleging that she had come to India in the
mid of March 2001. She had reached
Varanasi via Agra on 3.7.2001 and stayed
there in Room No.203 at the Tourist Rest
House, Tulsighat; that the accused persons
were making advances at her, since the time
she had checked in the rest house. In the
night of 3.7.2001 at about 11.00 p.m. she
was offered LASSI by Mani Raj Singh, the
owner of the tourist house and Vinod
Kumar Singh, a tourist Guide. After
drinking LASSI she became drowsy and
she was taken to the roof of the Rest House
by the aforesaid two persons where they
forced themselves upon her to satisfy their
lust. Thereafter, she was somehow able to
go to her room and closed the door. The
accused persons knocked at the door again
and again asking her to repeat the carnal act
but she did not open the door of her room.
Yesterday also they made effort to have sex
with her, but any how she could save
herself. As soon as she got a chance in the
next morning she left the rest house and
shifted to Ajay Hotel situated at Lahuraveer,
Varanasi.

4. On the basis of the written report
dated 5.7.2001, check report was prepared
and Case Crime No.90 of 2001 was
registered in the G.D. under section 376
IPC, against the aforesaid two accused
3 All] Mani Raj Singh Rathore V. The State of U.P.

1443
persons at Police Station Bhelupur (opposite
Assi Ghat), Varanasi. The investigation was
conducted by S.I. B.N. Tiwari. He
interrogated the complainant, prepared the
site plan and seized the register of the
Tourist Rest House vide memo (Ex.Ka-9) in
presence of public witnesses, wherein the
victim had given details of herself as well as
the time of arrival and departure from the
rest house.

5. Medical examination of the victim
was conducted by Dr. Mridula Mullick on
6.7.2001 in Women's Hospital, Varanasi. In
her medical report she recorded that the
victim was about 5 feet 5 Inch tall, weighed
about 61 kgs. and had an average body
built. Her secondary sexual character were
well developed. No mark of injury was
found on any part of her body. On internal
Examination, no mark of injury was seen on
her private parts. Hymen was old torn. Her
vagina admitted 2 fingers easily and she
was menstruating. Vaginal smear was taken
which
was
sent
for
Patholoigcal
examination of detection of spermatozoa.
Since the victim had a change of clothes
and undergarments, she was wearing at the
time of incident, therefore, they could not
be sealed after medical examination.
Radiological examination of X-ray of right
wrist joint, left knee joint and right elbow
joint was advised for estimation of her age.
In the supplementary report prepared on the
basis of Pathological Report, vaginal smear
was found negative for presence of
spermatozoa but contaminated with blood.
On the basis of Radiologist report the age of
the victim was ascertained to be above 18
years.No definite opinion regarding rape
could be given by the medical officer.

6. The victim's statement u/s 164
CrPC was recorded by the Additional Chief
Judicial
Magistrate-V,
Varanasi
on
6.7.2001, which reads as as under :

"I belong to German country. I came
to India in 15th March 2001. Firstly, I went
to Bombay, Banglore, Kerala, Agra then
came to Varanasi on 3rd July 2001 and
stayed at Tourist Guest House-Tulsi Ghat in
Room No.203.

In the night of 3rd July at 11.00 p.m.
onwer of Hotel Mani Raj Singh gave me
Lassi with some intoxicant. I became
confused and my heart fastely began to
beat. I could not move, Mani Raj Singh
kissed me and touched my body and breast.

Mani Raj Singh and Vinod Singh badly
both raped with me on the top of roof one
by one. They put off my whole clothes and
naked me and both (sic) tried again and
again sexual intercouse with me but any
how I escaped. When I locked my room,
they knocked my room again and again and
tried for sexual intercourse. When I got
chance, I left rest house and went to police
station for information. I shifted to Hotel
Ajay, Lahurabir.

Satement heard and verified.

Sd/- illegible

6.7.2001."

7. The investigation culminated in
chargesheet against both the accusedappellants. After committal of the case to
the Court of Session, the charge against the
accused under Section 376 (2) (g) IPC was
framed by the Additional Sessions Judge,
Varanasi. The accused denied the charges
and claimed trial.

8. The prosecution produced nine
witnesses in support of its case namely,
PW1 Dr. Mridula Mullick, PW 2 Devi
1444 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Prasad Singh, PW 3 Umashankar Gangele,
PW 4 I.B. Yadav, PW 5 Mohd. Ali, PW 6
Sanjay Sahai, PW 7 V.N.Tiwari, PW 8 S.D.
Pandey and PW 9 the victim. Accused Mani
Raj Singh and Vinod Kumar Singh were
examined under section 313 Cr.P.C. They
also produced five defence witnesses in
support of their case namely, DW 1 Sri
Atam Banerji, DW 2 Virendra Babu Singh,
DW 3 Uma Shanker Gangele, DW 4 B.N.
Tiwari and DW 5 Sri Mritunjai Singh.

9. On appreciation of oral and
documentary evidence on record and
hearing arguments of the counsel for the
parties, the trial court vide its order dated
30.8.2005 held both accused Mani Raj
Singh and Vinod Kumar Singh guilty of the
offence under section 376(2)(g) IPC
convicting and sentencing them for life
imprisonment and fine as stated earlier.

10. Counsel for the appellants
challenges the impugned judgment and
order on the ground that the order of
conviction is bad in law, as it is against the
weight of evidence and the sentence is too
severe. The appellants have not committed
any offence, as alleged by the prosecution.
The appellants Mani Raj Singh and Vinod
Kumar Singh did not know each other as
the later had never come to his rest house or
met him ever prior to the said incident; that
the appellants were not known to each other
they had no motive to commit the crime
together as alleged against them.

11. It is argued that Vinod Kumar
Singh can not also be said to have been
involved in the incident at all as he is said to
have gone on the roof for 5-10 minutes.
P.W. 6, Sanjay Sahai in his statement had
specifically stated that the said accused had
thereafter come back and hence could not
have had any opportunity to violate the
honour of the victim even if the case of the
prosecution is taken on its face value. It is
argued that the incident had not taken place
in the manner as stated by the prosecution;
that the accused were falsely implicated in
the case by the management of Hotel Ajay
because of business rivalry with Mani Raj
Singh Rathore and their strained relations
with Vinod Kumar Singh and that the
victim had allowed herself to be taken
advantage of the rival management against
the two accused persons for the reasons best
known to her. It is stated that the
Investigating Officer had also not disclosed
in his statement as to what was the
intoxicating substance mixed in the Lassi
alleged to have been given by the accused
to the victim and therefore, there was no
charge framed against the accused persons
under section 328 IPC .

12. Learned counsel for the appellants
submits that the victim claimed herself to be
in a state of drowsiness allegedly on
account of intoxicated LASSI offered to her
to drink by the accused persons, therefore,
she could not have identified any person
who might have committed rape upon her
much less the accused persons, who were
innocent; that the statement of the
prosecutrix recorded under Sections 161
and 164 Cr.P.C. can-not be relied being
contrary to and against the record. These
statements are therefore, not admissible;
that FIR has been lodged after inordinate
delay to implicate them by management of
Hotel Ajay and the prosecution has failed to
bring home the guilt of the accused persons
beyond reasonable doubt.

13. He further emphasized that Atam
Banerji was a German English Translator,
who had been summoned by the Court on
the request of the victim to help her during
the cross-examination as she was unable to
3 All] Mani Raj Singh Rathore V. The State of U.P.

1445
understand the questions put to her even
though
she
had
not
submitted
any
application for providing the services of
German-English Translator as such the trial
Court had committed an error in law in
providing aid of such a translator without
any application moved by the victim.

14. The counsel for the appellants
finally concludes that defence was not given
proper opportunity to rebut the statement of
the victim; that the case of the prosecution
does not fall under section 375 of
Explanation "fifthly" of I.P.C; that the FIR
stands demolished in so far as the factum of
alleged rape by the accused on the victim is
concerned i.e., except going on the roof part
which is no offence particularly in context
of this fact that there is no supporting
material regarding committing of rape by
the accused with the victim and as such the
appellants are liable to be acquitted or a
lenient view in quantum of sentence may be
taken by the court as the appellants have
languished in jail from 10.7.2001 to
24.3.2001 and thereafter since 3.8.2005
after their conviction in the case i.e. for
more than ten years for a crime they have
not committed.

15. Learned AGA submits that
offence committed by the accused under
Section 376 (2) (g) IPC is fully proved
beyond doubt on the basis of evidence on
record as well as circumstantial evidence.
That the appellants had known each other
from before and had committed rape on the
victim in the manner stated by the
prosecution by forcing her to sexual
intercourse under intoxication and without
her consent.

16. The AGA has then placed the
statements of both the accused under
section 313 Cr.P.C. to establish that the two
accused had known each other as they had
worked in the group of Hotels run by Hotel
Ajay whereas Mani Raj Singh worked in
Hotel Buddha (a family hotel of Hotel
Ajay) up to the year 2001, Vinod Singh had
also worked in Hotel Ajay at Lahurabir,
Varanasi during the same period i.e. 20002001 and left thereafter. After which Mani
Raj Singh started his own rest house. The
relevant portion of deposition of Mani Raj
Singh is as under:-

^^eSa VwfjLV jsLV gkml rqylh?kkV dk okjk.klh
dk ekfyd o lapkyd gwWA eSus ;g jsLV gkml lu~
2000 bZ- esa ykblsal ysus ds mijkar izkjEHk fd;kA
blds iwoZ esa vt; gksVy ds QSfeyh gksVy gksVy
cq)k esa dk;Z djrk Fkk vkSj viuk jsLV gkml izkjEHk
djus ds ckn eSus gksVy cq)k esa dke NksM+ fn;kA
gksVy vt; ds ikap gksVy gSaA gksVy vt;] gksVy
xkSre] gksVy iq"ikatyh] gksVy cq)k ,oa gksVy lw;kZA
nkSjku dk;Z VwfjLV jsLV vkml esa eSa cgqr dEiVhfVo
jsV ij dke dj jgk Fkk] ftlls gekjs iwoZ ekfyd
ds ;gka iSlsatj 1⁄4xzkgd1⁄2 ugh tk jgs FksA ftlls
mudks vkfFkZd {kfr gks jgh FkhA"

17. The statement of accused Vinod
Singh given u/s 313 CrPC shows that he
had also worked in Hotel Ajay. Therefore,
the accused had known each other for long
time. The relevant portion of the statement
of accused Vinod Singh is as under:

^^fnukad 23-7-2000 rd mRrj jsyos okjk.klh
esa Jh ;w- ih- falg iwM+h Bsyk] okjk.klh ds ;gka gsYij
dk dke djrk FkkA esfMdy dk Nk;k izfr }kjk
lhfu;j fMohtu esfMdy vkQhlj n- js- dh Nk;k
izfr lkFk esa layXu gS vkSj tc izkFkhZ ds esfMdy dk
uohuhdj.k ugh gqvk rks izkFkhZ us vt; gksVy
ygqjkohj] okjk.kklh ds ;gka dqd dk dke vxLr
2000 esa eq0 4]000@:0 izfrekg ds nj ls dk;Z
djus yxk vkSj 10 tuojh 2001 dks tc vt;
gksVy ds ekfydku us izkFkhZ dh eq0 7]000@cdk;k
ugh fn;k rks izkFkhZ us dke NksM+ fn;kA 30-6-2001
dks eSaus vt; gksVy ds ekfydku ls l[r rdknk
fd;k vkSj vnkyr esa tkus dh ckr dghA ftldh
otg ls vt; gksVy okys us eq>s le> ysus dh
/kedh fn;k Fkk vkSj mijksDr >wB eqdnesa esa cnys
1446 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

dh Hkkouk ls eqfYte cuok fn;kA eSaus dHkh xkbM
dk dke ugh fd;kA eSa Bhd ls fgUnh Hkh ugh
tkurkA vaxszth rks eS fcYdqy ugh tkurkA eSaus
VwfjLV jsLV gkml rqylh?kkV ns[kk gh ugh gS vkSj u
gh dHkh ogka dke fd;k gSA"

18. To further substantiate that
accused-appellants not only knew each
other but were intimate and accused Vinod
Kumar Singh was familiar with the outlay
of the rest house and was known to their
employees. The learned AGA has placed
the statement of PW 6 Sanjay Sahai and
submitted that this witness has stated that
Vinod Kumar Singh had come at about
11.00 p.m. and had enquired from him
about Mani Raj Singh. On being informed
by him that Mani Raj Singh was on the roof
with a lady. Vinod Kumar Singh also went
there. He came back and asked for
something to eat and drink to be served to
the lady guest (victim). P.W.6 told him that
there is curd in the fridge which was taken
out and Lassi was prepared by Vinod
Kumar Singh which he took upstairs on the
roof in a glass and returned again within 510 minutes. This witness also stated that
when Mani Raj Singh was with the victim
on the roof of the rest house since 8.30-9
p.m. he had called him for getting candles to
prepare romantic atmosphere on the roof
which were brought by him. In his crossexamination P.W.6, Sanjay Sahai stated that
when Mani Raj Singh and Vinod Kumar
Singh were on the roof, he was again
beckoned for getting some cigarettes which
he purchased from the market and gave it to
them. This witness, however, in his crossexamination denied his statement u/s 161
CrPC, although he has admitted therein that
when Mani Raj Singh accused and the
victim were on the roof the former
specifically directed him that if any one
asks for his whereabouts he may be
informed that he is not there and to come on
the roof only when he was called by him.

19. On the basis of the aforesaid
statements of the accused persons, the
learned AGA would argue that these
statements belie the contention of the
learned counsel for the accused-appellants
that they were unknown to each other. Had
Vinod Kumar Singh been unknown to Mani
Raj Singh, he would not have behaved in
the manner as has come in the testimony of
P.W. 6 i.e. he asked about Mani Raj Singh
from Sanjay Sahai, P.W.6 and went to the
roof straight away where Mani Raj Singh
was with the victim came down and
prepared LASSI by taking curd from the
refrigerator and again went on the roof top
of the rest house to serve the same to the
victim.

20. As regards delay in lodging the
FIR is concerned, learned AGA has
submitted that the victim was raped by the
accused persons on the roof of the rest
house. She was put under the influence of
some intoxicants given to her in the LASSI
offered by the accused-appellants. She was
not able to move from the rest house until
next morning as she was put under
intoxication by the accused in the rest
house. They after committing rape upon her
had again come to her room and knocked
on her door to get it opened for violating her
again. When with the aid of another lady of
foreign origin she could shift to hotel Ajay.
She could not have in the circumstances
known the management of this Hotel or the
fact that there was any rift or business
rivalry between the management and the
accused Mani Raj Singh, owner of the rest
house prior to shifting. She had confided
only in the foreign lady who also had
shifted with her from the rest house.
Therefore, there could also be no motive or
3 All] Mani Raj Singh Rathore V. The State of U.P.

1447
occasion for her to confide about the
incident with the management of Hotel
Ajay or know about any business rivalry
between them and that the victim was not in
a normal state of mind and was able to leave
the rest house with the help of another
foreigner lady who after hearing her
miseries not only had helped her in moving
out in the morning of next day to Ajay
Hotel but had herself also moved there.

21. He further submits that there is
nothing wrong if the victim took some time
to calm herself and sort out the situation in
which she was finding herself gang raped
by two persons in a foreign country as she
was an unmarried young woman. It had
clearly come out in her statement that after
thinking over the matter for a long time, she
gathered enough courage at about 8.00 P.M.
when she decided to inform the police and
FIR was thereafter lodged by her at about
8.20 p.m 5.7.2001 at P.S. Bhelupur, Sadar
Varanasi.

22. It is vehemently argued that this is
a case where a lady had come to our country
as a tourist and had been raped by the owner
of the tourist house and the guide together.
It is stated that defence of the accused that
they have been falsely implicated is evident
by fact that FIR was lodged after
considerable delay after the prosecutrix had
shifted to Hotel Ajay is not sustainable.
According to him, no tourist much less a
foreigner would involve her honour in a
foreign country only for the purpose of
implicating anyone for an alleged business
rivalry between two sets of hotels,
particularly whom she did not even know
from before as she has come to Varanasi for
the first time.

23. After hearing counsel for the
parties and on perusal of record we find that
prosecution has been able to prove the guilt
of the accused beyond all reasonable doubt
for reasons given in subsequent paragraphs
hereinaftter.

24. The victim in her statement has
narrated the effect of intoxicated Lassi
offered by the accused persons, the act of
ravishing her by them on the roof and the
developments thereafter resulting in lodging
of the FIR by name against the accused
persons which conclusively shows that she
had identified and remembered the accused
persons even during her drowsiness and the
manner in which the accused had followed
her up-to her room in the rest house. The
relevant extract of the statement of the
victim in Court below for ready reference is
quoted below.

".... After drinking Lassi my heart was
beating fast. They touched me, kissed me.
They put off my clothes. I never consented
to their acts. I felt asleep after taking Lassi.
They committed sexual intercourse with me.
When I got up then I went to my room. I was
lying on a bed cover on the roof. When I
came to my room, I locked my door. These
persons knocked the door and loudly voiced
more times. I could not understand the
words spoken by them. I did not open the
door. The next day a woman asked me what
has happened here then she helped me to
leave the hotel. Same evening the accused
persons brought my clothes from the room
and dropped there. After leaving the rest
house, I went to some other hotel. The name
of that hotel I cannot recall. More people
came to and asked about the incident. I
went to police station and gave my
complaint (Paper No.4A ) is the information
which was given by me in the police station.
This paper is already exhibited as Ext. Ka14. This paper has been written and signed
by me. After giving this paper police officer
1448 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

asked me about the incident. After giving
this complaint, I returned back to my new
hotel. The next day, I went to District
Hospital and I was medically examined.

(Court observation-"The witness while
giving her statement was weeping and has
tears in her eyes.)"

25. As drink was mentioned in the
statement, the court made a query as to what
she understood by 'drink'. In response, she
clarified that by drink she meant 'LASSI'
which was given to her to drink.

26. In his statement under section 313
Cr.P.C. Mani Raj Singh tried to put the
blame on the victim saying that she herself
had the intention to have bodily intimacy
with him. He stated that--

" fnukad 3-7-2001 dks jkf= 8-00 cts eS 5
'kgj ls vk;k vkSj vius jsLV gkml ds dkm.Vj ij
ml fnu vk;s iSlsatj dk ys[kk tks[kk ns[k jgk Fkk
fd blh chp ihfMrk teZu ukxfjd dkm.Vj ij
vk;h vkSj f'k"Vkpkj ds ukrs eSus [kM+s gksdj mldk
vfHkuanu fd;k vkSj iwaNk fd dksbZ d"V rks ugh gS
fd brus esa ihfMrk us viuk gkFk feykus ds fy,
gekjh rjQ c<+k fn;kA ihfMrk us esjk gkFk djhc 5
feuV rd Fkkes j[kk vkSj eq>s dkeqd utjksa ls ?kwjs
tk jgh Fkh vkSj dqN dg jgh Fkh tks esjh le> esa
ugh vk;kA flQ vkxjk 'kCn esjh le> esa vk;k
rFkk mlus eq>ls ;g Hkh dgk ^^vkbZ yo ;w^^A mlh
jkr eS djhc 11 cts ls 12 cts ds chp ihfMrk us
eq>s jsLV gkml ds Nr ij cqyk;k vkSj tc eS Nr
ij igqapk rks og ,d pknj ij ysVh gqbZ Fkh vkSj
mlus viuk gkFk esjs rjQ c<+kdj mBus esa enn
pkghA eSaus mldk gkFk idM+dj mldks mBus esa
enn dh] ml le; og gjs jax dk flYdh xkmu
igus gq, Fkh vksj og cgqr gh jksekafVd ewM esa Fkh
vkSj eq>s cgqr gh dkeqd utjksa ls ns[k jgh FkhA
mlus eq>ls fMaad vjsat djus gsrq dgk ftl ij eSaus
dgk fd gekjs ;gka fMaaDl loZ ugh dh tkrh] D;ksafd
fMaaDl loZ djus dk ykblsal eq>s ugh gSA rc mlus
vius dejs dh pkHkh nsdj eq>ls dgk fd gekjs
dejs esa fOgLdh j[kh gSA mldks ykvks vFkok
eaxokvksaA eSaus fOgLdh o ,d fxykl eaxok;k mlus
rhu isx fOgLdh fi;k vkSj u'ks dh gkyr esa ckj ckj
^^vkbZ yo ;w^^ nksgjk;s tk jgh FkhA mlds ckn
ihfMrk us eq>ls lEHkksx ds fy, dgk tks eSaus badkj
dj fn;k A esjs gkFk idMs gq, Fkh vkSj eq>s fdl
djus dh dksf'k'k dh] mlus cryk;k fd og ekfld
/keZ esa py jgh gSA tc eSaus mldh ckr ugh ekuh]
rc og xqLls esa iSj iVdrh gq;s cMcMkrh gq, vius
dejs esa pyh x;hA

27. The above statement of accused
Mani Raj Singh speak volumes of his dirty
mind. In fact it appears from the above
statement of Mani Raj Singh that he was in
fact on the roof of the rest house with the
victim and had arranged the drink (LASSI)
for her. He claims to have refused to have
intercourse with her when she had offered
herself to him thereafter she in anger went
to her room. The manner and sequence of
events stated by Mani Raj Singh therefore,
tally with the events narrated by the victim
in her FIR except that Mani Raj Singh had
tried to put the blame on the victim whereas
she claimed to have been raped by him.

28. He tries to take shelter behind a
Sadhu whom he alleges was in the room of
the lady at about 9.00 P.M. on 4.7.2001
who according to his own version moved
out from the hotel on his raising objection
that the Sadhu could not remain in her
room. It is averred that whenever an extra
guest stays payment for extra bed is charged
or another room is advised to be hired for
the guest. The sadhu was a guest of the
prosecutrix. She may have been wanting
spiritual guidance from the sadhu or was in
search of moral values merely because the
victim wanted a sadhu to stay in her room
would not mean that victim wanted to have
any physical relationship with him. On the
contrary it can be said that the accused did
not want sadhu or any other person with the
victim and therefore, did not allow him to
stay at the rest house with her on any
condition as to convert their 'desire' into
3 All] Mani Raj Singh Rathore V. The State of U.P.

1449
action. He had also denied that the coaccused Vinod Kumar Singh has neither
known to him nor had ever he been falsely
implicated in the case by Hotel Ajay (family
group) due to business rivalry. The relevant
extract of the statement of accused Mani
Raj Singh is as under:-

"fnukad 4-7-2001 dks 9 cts jkr eq>s esjs
gksVy ds deZpkfj;ksa us crk;k fd ihfMrk ,d cgqr
gh gq"V&iq"V O;fDr tks djhc 35 o"kZ dk gS vkSj
:nzk{k dh ekyk o xs:ok oL= /kkj.k fd;s gq, gS dks
vius dejs esa ys x;h gS vkSj dejk Hkhrj ls cUn
dj fy;k gSA rc eSus tkdj dejk uacj 203 dk
njoktk [kVdk;k rc dkQh nsj ckn ihfMrk dejs ls
ckgj vk;hA iwaNus ij mlus dgk fd lk/kw esjk nksLr
gS vkSj jkr esa esjs dejs esa jgsxkA esjs ,rjkt o
dkQh le>kus ds chp ihfMrk us mls ckgj fd;kA
fnukd 5-7-2001 dks og jsLV gkml NksMdj pyh
x;hA fouksn dqekj flag tks bl eqdnesa esa esjs lkFk
vfHk;qDr gS dks eSa ugh tkurk vkSj u gh mUgksaus
dHkh esjs jsLV gkml esa dke gh fd;k gSA vt;
gksVy QSfeyh xzqi us dkjksckj dh izfr}afnrk ds
dkj.k lkft'ku eq>s bl >waBs eqdnesa esa Qalk fn;kA^^
1⁄4bl dFku esa ihfMrk ds uke dks 'kCn ihfMrk ls
lacksf/kr fd;k x;k gS1⁄2"

29. What the accused in his statement
above wants to say is that the victim was a
consenting party in the carnal act. Even if
for argument sake a worst case is taken that
a woman not known to such pleasure even
then she cannot be taken for granted for
physical intimacy without her consent.

30. Her feeling and mental condition
why she could not lodge FIR immediately
after the incident are described in her cross
examination where she denied having
falsely implicated the accused. The relevant
extract of her cross examination reads thus :

"It is wrong to say that his refusal to
have sex with me hurt me and it is also
wrong to say that I could not digest the
humiliation. It is wrong to say that for two
days on 4th of July, 5th of July till evening I
could not decide my future action, but the
lady inside me was too much hurt. I was
fuming with rage against the owner of the
rest house. It is also wrong to say that after
I shifted to the Ajay hotel, the owner of the
hotel Ajay after hearing my story put fuel on
the fire and instituted to lodge an FIR. It is
also wrong to say that the names of the
accused person were provided by the
Manager of Ajay Hotel because of business
rivalry. It is also wrong to say that the
Manager of the Ajay Hotel wrote an FIR
and asked me to copy it in my own hand
writing. It is also wrong to say that the
accused persons never committed sexual
intercourse with me.

Sometimes I know about Hindu
Mythology. I know very little about Muslim
Mythology. I know in Hindu Mythologies
Cohabitation during Mensuration is strictly
prohibited. I wanted that the owner of the
Hotel should play the role of boy friend and
behave like the boy friend of Agra. I asked
some one and came to know that these
accused persons were detained in Jail for 3
years. I do not know nor I know that the
owner of the rest house is married accused
has got three children. It is wrong to say
that the accused persons were falsely
implicated. It is also wrong to say that the
accused persons never violated my person.

31. In the facts and circumstances of
the case we are of the considered opinion
that the trial court has rightly held that being
a foreign lady without any companion the
victim was under dilemma and confused
about her future course of action. She on
pondering over the matter after shifting
from Tourist Rest House to Hotel Ajay on
5.7.2001 decided to lodge the FIR as such
there is no unreasonable delay in reporting
the crime to the police.
1450 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

32. She in her statement on 28.4.2005
provided an insight into what
was
happening in her mind after the incident.
Her statement in the trial Court was
recorded on 27.4.2005 for three days. She
had correctly identified both the accused
persons in the Court. The relevant extract of
the cross examination read thus :

"I do not remember that what I was
doing in between the time when I reached
Ajay Hotel and the time of lodging of FIR in
police station Bheloopur at 8.20 p.m. On
5th of July 2001. I have written in my report
Ext. Ka-14 that I have stayed in hotel Ajay.
My statement was recorded by the
Magistrate on 6th of July 2001. In my
statement under section 164 CrPC I have
stated before the Magistrate that "I left rest
house and went to the police station for
information. I shifted to Hotel Ajay
Lahurabeer."
The
statement
recorded
before the Magistrate is true. When
yesterday, I came in the court for my
statement my heart was beating fastly.

On the 3rd of July at 11.00 p.m. in the
rest house one people, I can show him
ordered Lassi for me. I remember that it
was only one glass. I remember the name of
the person who ordered for Lassi. He was
Mani Raj. Mani Raj is the person who
booked the room when I checked in I do not
know. I am not sure.

I do not exactly remember the day
when I was medically examined. I was
accompanied by a female police personnel.
I have initiated proceeding against.

At this stage, the witness has requested
that a German English translator should be
present at the time of my evidence. On her
request
further
cross-examination
is
adjourned for tomorrow.

Sd/- illegible

28.4.2005."

33. In her cross examination on the
next day i.e., on 29.4.2005 she not only
denied the suggestion that the name of
accused Mani Raj Singh was prompted to
her by the public prosecutor or police
officer sitting in the court. She stated that
she was so shocked that she did not see any
police station in the way and after checkingin Ajay Hotel she did not talk to the
manager of the hotel about the incident. It
appears from the above statement that she
was thoroughly confused and was suffering
from shock of having been forcibly ravished
by two accused at the rest house against her
will. Then she kept moving without any
purpose after reaching Hotel Ajay and
lodging the FIR. She did not know what to
do in such a situation in a foreign country
and upon whom to rely for help. Thereafter
she decided to lodge the FIR.

34. Sri Atam Banerji, the German
English Translator who had assisted the
victim was summoned by the Court as DW
1 to clarify certain question put to the victim
and her understanding of it. He stated thus :-

"He stated that I came to assist the
court in connection with the evidence of
Miss 'C'. The questions were put by defence
counsel to her in English. Every time she
was not able to understand the question. I
can not say that her English was 50% or
25% correct but she was not good in
English. On that day after lunch hours a
question was put to the witness- "did you
remove your clothes yourself." So far as I
remember such type of questions. She was
replying herself in English. I do not
3 All] Mani Raj Singh Rathore V. The State of U.P.

1451
remember whether she answer to this
question was yes or no."

The aforesaid statement does not bring
out any thing against the victim at all, hence
does not help the appellants.

35. In so far as his appointment by the
Court as Translator for the victim is
concerned, there is nothing to suggest that
the Court had acted illegally or committed
any procedural irregularity in providing the
services of a translator on request of a
victim of rape who is a lady of foreign
origin. The Court below had in the facts and
circumstances rightly taken a humanitarian
approach in the matter to cut short the
technicalities as the victim was unable to
understand the import of questions put to
her and knew very little English. The victim
knew very little English or faulty English is
also evident from record i.e. the FIR and on
other occasions. She used English as a via
media to translate her thought in German
into English. However, we have considered
the procedure of the Court in calling Atam
Banerjee as defence witness in later part of
the judgment.

36. The statement of the victim and
P.W.6 read with the statements of the
accused persons establish the fact beyond
doubt that both of them were partners in
crime and were well acquainted which is
apparent from record. The contention of the
learned counsel for the appellants that there
was no opportunity or time for Vinod
Kumar Singh to have had the victim does
not stand to scrutiny. Normally the act of
carnal activity does not last for more than
three to seven minutes. Therefore, it was
possible for Vinod Kumar Singh during the
period he was on roof to have raped the
victim. Moreover, the accused also had
opportunity to satisfy their lust when P.W.6
had been sent to bring cigarettes from the
market.

37. It would be apt at this stage to
refer to the provisions of Section 375 IPC
read with Section 114-A of the Evidence
Act. These sections read thus:-

"S. 375. Rape.--A man is said to
commit 'rape' who, except in the case
hereinafter excepted, has sexual intercourse
with a woman under circumstances falling
under any of the six following descriptions
:--

First.-- Against her will

Secondly.-- Without her consent.

Thirdly.-- With her consent, when her
consent has been obtained by putting her or
any person in whom she is interested in fear
of death or of hurt.

Fourthly.-- With her consent, when the
man knows that he is not her husband, and
that her consent is given because she
believes that he is another man to whom she
is or believes herself to be lawfully married.

Fifthly.-- With her consent, when, at
the time of giving such consent, by reason
of unsoundness of mind or intoxication or
the administration by him personally or
through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of
that to which she gives consent.

Sixthly.-- With or without her consent,
when she is under sixteen years of age.

Explanation.--Penetration is sufficient
to
constitute
the
sexual
intercourse
necessary to the offence of rape.
1452 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Exception.--Sexual intercourse by a
man with his own wife, the wife not being
under fifteen years of age, is not rape."

"114-A. Presumption as to absence
of consent in certain prosecution for
rape.- In a prosecution for rape under
clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of subsection (2) of section 376 of the Indian
Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the
question is whether it was without the
consent of the woman alleged to haven
raped and she states in her evidence before
the Court that she did not consent, the Court
shall presume that she did not consent."

38. Although it has come in evidence
that on account of intoxicating lassi taken
by the victim at the hands of the accused
persons, she became drowsy. The accused
persons taking advantage of this have
ravished her. The victim had categorically
stated in her long deposition before the trial
court that she did not consent for the coitus
activity and it was done against her will.
Therefore, it would be naive to say that the
instant case is only covered under exception
fifthly. In the instant case exceptions first
and second of Section 375 IPC are also
attracted. Thus the contention of the learned
counsel for the appellants that no charge u/s
328 IPC was framed or proved against the
accused persons is without force. Further as
per provisions of section 114-A of Evidence
Act there would be a presumption that the
victim did not consent for sexual intercourse
by the accused persons if after proof of
intercourse by accused, the victim in her
deposition before the Court states that she
didn't consent. Since the victim had not
given any such consent and therefore, the
act
of
the
accused
persons
would
tantamount to sexual assault under Section
376(2)(g) of IPC.

39. The version of the accused
persons that the victim had herself under the
influence of alcohol/whisky wanted to have
intercourse with them is belied. It is
apparent from the record that Mani Raj
Singh had taken the victim to the roof, he
had procured candle light and cigarettes. He
had also asked Vinod Kumar Singh, Guide,
who had come later on to get something to
drink. Vinod Kumar Singh had made query
from Sri Sanjay Sahai and was informed
that there is curd in the refrigerator.