Shanker Lal and Others vs State of Rajasthan

Gopal Krishan Vyas, J.—The instant cr. appeal has been filed under Section 374(2) of Cr.P.C. by the accused appellants Shanker Lal and Rakesh against the judgment passed by the learned Addl. Sessions Judge (Fast Track) No. 1, Jodhpur dated 1.6.2005 whereby the learned trial court convicted the accused appellants for offence under Sections 376(2)(G) IPC and for offence under Sections 365 , 366 and 395 IPC and passed the following punishments, which reads as under:

As per the brief facts of the case, a written report was submitted by PW-1 Petra Whust resident of Germany before the SHO, Police Station Shastri Nagar, Jodhpur on 12.5.2005 at 1.40 am for the occurrence which is said to have took place on 11.5.2005 at about 9.00 pm near Jojari River (Basni Benda), Jodhpur. The written report (Ex. P/1) submitted by the complainant is as follows:

"To,

The S.H.O, Shastri Nagar, Jodhpur.

Sub: Regarding Registration of report.

Sir,

Yesterday date 11.5.2005 I had decked in at Haveli Guest House inside Jodhpur City. In the evening I went to have dinner at the Marwar Restaurant at Hotel Taj Hari. After dinner at about 9 p.m. I came out and walked to the nearby circle to return back where an auto Rickshaw stopped by me with two young men inside and enquired where I want to go. I asked them to hire the auto rickshaw to take me to Haveli Guest House. They said S.K. talked among themselves and then I board the auto-rickshaw of the two one and wearing a white shirt with dark trousers and the other one was wearing a T-Shirt with small stripes and a short scarf. Although this is my first time in Jodhpur but I felt they were taking me in a strange direction. I asked them to take me to Haveli Guest House in Jodhpur and then I asked them to stop. They stopped at some lonely place and the man the white shirt came to the back and started beating me violently on the face and I screamed. Both of them to snatched my purse and my mobile, they did not stop hitting me and tore my cloths. When I tried to come out of the Rikshaw the second person with the stripes T-Shirt rided and forced me back violently on the back seat at the Rickshaw and put my shawl (scarf) around my neck. Then the person with the white shirt took of my trousers and raped me inside the rickshaw on the backseat until the end. After he finished the second person turned me and tried to penetrate me from the back. I kept shouting hearing which some villagers came near the rickshaw. The two men put the hands on my mouth and hit me again but I kept shouting. The auto-rickshaw was start and kept rolling.

I gathered courage and jumped out of the auto-rickshaw without trousers to save my life and the two sped away in the auto-rickshaw with my purse, mobile and valuables. The villagers tried to stop them by throwing stones and hitting with their sticks which broke the front window screen glass of the auto-rickshaw. The villagers gave me trousers and called the police. I am sure they wanted to kill me and will never forget this bad experience. They snatched my gold earnings also. I am giving that complaint to do legal action against the two who abducted me, raped me and then robbed me of my mobile, purse, earrings, dhoes, glaces, my trousers, undergarment and scarf remained back in the auto. I can identify the two persons and the auto rickshaw with white seat covers and photographs of women faces behind the driver seat.

Sd. Petra Wust Petra Wust Plattershasse 142 65193 Wieshabaden Germany 0049 (O) 1729976134 My Cell Number is taken away by the culprits 4202221416 passport No. gipsy @ gmx provisions.de."

On the basis of above report, the SHO, Police Station, Shastri Nagar, Jodhpur registered an FIR No. 164/2005 under Section 365 , 366 , 376 and 394 /34 IPC. The Division Bench of this Court suo motu took cognizance for the aforesaid incident which was reported in the newspaper and pas following order on 13.5.2005 in D.B. Suo Moto Petition No. 2056/2005, which reads as under: -

"D.B. Suo Moto Petition No. 2056/2005.

Date: 13.05.2005.

HON''BLE MR. JUSTICE N.N. MATHUR HON''BLE MR. JUSTICE MANAK MOHTA

Suo Moto.

Today we have come across a news report to the effect that a German tourist is alleged to have been raped on the outskirts of the Jodhpur City by an auto-rickshaw driver and his accomplice. As per the report, 47 year aged woman from Frankfurt, an employee with Lufthansa Airlines had arrived in Jodhpur on Wednesday and hired an auto-rickshaw in the evening from ''Riktiya Bhaironji Circle'' for a guest house situated in the walled city area. The driver drove the auto-rickshaw in the opposite direction on Jodhpur-Pali highway. The driver was accompanied by the other accused sitting on the corner of the driving seat. It is alleged that the lady tourist was being raped near dry bed of Jojari River. The screams of the lady tourist attracted the villagers of ''Meghvalon-Ki-Dhani''. The villagers extended help to the said tourist and informed the police. It is reported that the police has promptly acted on the information and arrested the accused persons.

The rape is serious crime whether it is of a foreign tourist or any other woman. However, it leaves a question mark on the safety of the foreign tourist in the city of Jodhpur. It is likely to create panic amongst the tourists visiting Jodhpur and the other parts of the Country.

In the peculiar facts and circumstances of the case, we consider it appropriate to take cognizance of the incident and direct as follows:--

(i) The Registry is directed to register a Suo Moto petition under the label of "Public Interest Litigation".

(ii) The State of Rajasthan through Secretary Department of Home, the Director, Tourism and Superintendent of Police (City) Jodhpur be impleaded as party respondents.

(iii) A notice be issued to the said respondents returnable within a period of one week.

By ad interim order, further directions are given as follows:

(a) The Superintendent of Police, City Jodhpur is directed to ensure that the investigation of the case is concluded at the earliest.

(b) All the agencies concerned with the investigation, including Director, FSL are directed to co-operate with the investigation. FSL Report must reach on or before 16.5.2005.

(c) In event of filing of charge-sheet, the learned Sessions Judge is directed to ensure that the trial of the case is concluded expeditiously as far as possible within a period of one month from the date of filing of charge-sheet.

(d) The Superintendent of Police, City Jodhpur is directed to ensure the safety of the victim.

(e) The State of Rajasthan is directed to bear all the expenses of the victim for her overstay on account of the incident. She will be paid lodging and boarding expenses for visiting Jodhpur for investigation or trial in connection with aforesaid incident.

(f) The question with respect to the payment of compensation shall be decided after hearing counsel for the State on the next date of hearing.

(g) The Principal Secretary, Department of Home, State of Rajasthan is directed to ensure the compliance of the order.

(h) A copy of the order be sent to the Principal Secretary, Department of Home, State of Rajasthan today itself by fax.

(i) A copy of the order be also served on the victim.

List on 23rd May, 2005."

In compliance of above direction given by the Division Bench of this Court, the investigation concluded promptly, both the appellants were arrested on the same night vide arrest memo Ex. P/21 and P/18. In the investigation recoveries were made and medical examination of prosecutrix was conducted by the Medical Board headed by Dr.P.C. Vyas, Associate Professor of MLC Department, Mahatma Gandhi Hospital, Jodhpur and after thorough investigation, the police filed charge-sheet within three days against the accused appellants for the offences under Sections 376(2)(G) , 365 , 366 and 394 IPC in the court of Chief Judicial Magistrate, Jodhpur from where the case was committed to the Sessions Court, Jodhpur, but later on, transferred to the court of Addl. Sessions Judge (Fast Track) No. 1, Jodhpur for trail.

The learned trial court framed charge on 16.5.2005 under Section 365 , 366 , 376(G) and 394 /34 IPC against the accused appellants on the basis of prosecution evidence. Both the accused appellants denied the charges levelled against them and prayed for trial.

In the trial, the statements of 20 prosecution witnesses were recorded including prosecutrix PW-1 Petra Whust and PW-4 Bhiya Ram, PW-5 Hema Ram, PW-6 Rawta Ram and PW-7 Chandi Dan PW-18 Badri Ram, who gave his pent to the prosecutrix who was standing on the place of occurrence without cloths on lower part of body. The statements of PW-16 Dr.P.C. Vyas were recorded who conducted medical examination of prosecutrix and gave categorical opinion that rape has been committed with the prosecutrix.

After recording statement of prosecutrix, the statement of both the accused appellants were recorded under Section 313 Cr.P.C. in which they denied all the charges and said that they are innocent, so also, did not commit offence of rape upon prosecutrix nor they assaulted her after kidnapping. It is also stated by them that no articles were recovered upon their information. More so, police has falsely concocted a story of recovery of articles only to indulge them in the alleged offence of rape.

In defence statement of witness DW-1 Nathu Ram were recorded. Thereafter, final arguments were heard by the learned trial court and vide the impugned judgment dated 1.6.2005 both the accused appellants were convicted and sentenced as aforesaid.

The learned counsel for the appellants vehemently argued that the judgment impugned is totally erroneous because no offence is committed by the appellants, but learned trial court erroneously held appellants guilty for alleged offence, therefore, it is a case of false implication of appellants in the alleged crime because investigation was conducted in hurry with a view to saw its importance in the society that within 2 or 3 days. According to the learned counsel for the appellants it is a case in which in very haste manner, the investigation is conducted, therefore, it cannot be said that prosecution has proved its case beyond reasonable doubt, more so the prosecution has failed to prove its case that appellants forcibly took the prosecutrix in front of hotel Taj Hari and forcibly committed rape upon her because she did not cry in the way and resisted, therefore, the allegation of rape in the three wheeler taxi by two persons is totally unacceptable thing. It is argued that the facial feature of the appellants was not given by the complainant so also in the statement recorded under Section 161 and 164 Cr.P.C. therefore it is a case in which without any material of trustworthy evidence, the accused appellants have been convicted for serious offence of rape.

The learned counsel for the appellants vehemently argued that allegation of prosecutrix is that she was taken in lonely place, if it so, then why she did not cry and why she did not resist and tried to escape from the clutches of appellants. In fact, it is a case of false implication of the appellants upon the false and concocted story framed by the complainant. Learned counsel for the appellants argued that there is no evidence on record that appellant Shanker Lal gave any information under Section 27 of the Evidence Act. It is cardinal principle that contention of the co-accused is not inadmissible in evidence, therefore, it is a case in which the prosecution has failed to prove its case because burden to prove lies on prosecution to prove the case against accused. In case of rape the onus is always on the prosecution to lead evidence to establish that offence is committed by the accused. As per appellant No. 1 it is a case in which there is agreed suspicion against the accused appellants, therefore, the judgment impugned may be quashed. It is also argued that the trial was conducted by the trial judge in hurry, therefore, he has failed to appreciate the evidence of prosecution in right perspective and erroneously held the accused appellant guilty upon the prosecution evidence, which is not reliable, therefore, this appeal may kindly be allowed. Learned counsel for the appellants submits that without prejudice to aforesaid arguments this Court may consider the fact that both the appellants are young boys and prosecutrix is more than 45 years of age, therefore, in view of judgment of Division Bench of this Court in the case of Yad Ram Vs. State of Rajasthan, the sentence may be reduced to ten years from life imprisonment.

Per contra, learned Public Prosecutor vehemently argued that the appellants have committed serious offence by which the trust upon the society ha been destroyed. While inviting attention towards the statement of PW-1 Petra Whust prosecutrix it is submitted that the prosecutrix has categorically narrated whole story before the police in the written FIR filed by her and in the statement recorded under Section 164 Cr.P.C. and the statement before the court during trial. Upon perusal of the statement of prosecutrix it will reveal that all the ingredients for offence under Section 376(3) or other offences are in existence. Further, it is submitted that at the time of occurrence, villagers PW-4 Bhiya Ram, PW-5 Hema Ram and PW-6 Rawta Ram and PW-16 Badri Ram came on the spot for rescue when they heard cry noise of prosecutrix, therefore, the testimony of those witnesses cannot be disbelieved because other evidence and the medical examination report (Ex. P/2) dated 12.5.2005 conducted Dr. P.C. Vyas of SN Medical College and Hospital, Jodhpur categorically corroborating the allegation levelled by the prosecutrix in her statement with regard to injuries sustained upon her during rape. Further, it is submitted that PW-16 Dr.P.C. Vyas and PW-4,5,6 and 18 have categorically supported the prosecution case, therefore, there is no strength in the argument of the learned counsel for the appellants that prosecution has failed to prove its case beyond reasonable doubt. More so, it is a case in which the prosecution has proved its case beyond reasonable doubt by leading trustworthy and reliable evidence, therefore, no error has been committed by the learned trial court in convicting the accused appellants for alleged offence of rape, kidnapping and abduction, in view of above it is prayed that this appeal may kindly be dismissed.

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence on record including the statements of the prosecution witnesses and defence witnesses upon which finding is given by the learned trial court to held accused appellants guilty.

It emerges from the record that to prove the prosecution case for commission of offence in all 20 witnesses were produced by the prosecution in the trial including prosecutrix PW-1 Petra Whust. Admittedly, the FIR was registered upon the written report submitted by the prosecutrix PW-1 Petra Whust before the SHO, Police Station, Shastri Nagar, Jodhpur. The prosecutrix appeared in the trial as witness PW-1 and categorically supported the allegation levelled by her in the FIR and stated that in the identification parade she identified the accused appellants present in the court and said that I came to India on 8.5.2005 from Germany and reached Jodhpur on 11.5.2005 in Jodhpur stayed at Haveli Guest House. On the same day she went to Taj Hari Hotel in the night for dinner and after taking dinner she decided to go back in Haveli Guest House for reading books and relaxing. The prosecutrix walked bit out of the premises of the hotel, she decided to engage an auto-rickshaw to reach Haveli Guest House, but some of the auto-rickshaws passed were full of passengers but the present accused appellants stopped their auto-rickshaw and asked that are you in need of auto-rickshaw and the prosecutrix replied "yes". Thereafter, she boarded in the auto-rickshaw (taxi) which was driven by accused Rakesh, identified in the court. The prosecutrix stated in the Court that both the accused were sitting in front of auto-rickshaw and accused Rakesh was driving and another person was sitting beside him on the driver seat itself. When auto-rickshaw was going towards circle and upon a big city road at that time prosecutrix was not knowing Jodhpur geographically, but asked the driver "Jodhpur Jodhpur". Thereafter, she told auto-rickshaw driver to stop the vehicle immediately because as per prosecutrix they were not going to right direction. Upon asking they stopped the vehicle and accused Shanker come in the back and caught her and laid down her so also, he started robbing the cloths. It is also stated by the witness that at that time, she concluded that they wanted to rape her then she resisted to rescue herself, but accused started hitting very fast on the face of prosecutrix and continuously gave beating but she tried to escape at that time, but accused Shanker Lal caught her hairs, therefore, she could not escape. Thereafter, they throw the prosecutrix on the floor and hit on abdomen and back and caught the prosecutrix in the arms and put in the auto-rickshaw and took off her trouser and Shanker committed rape upon her. After committing rape by Shanker he pushed his friend - accused Rakesh to rape her and Shanker again hit her then Rakesh took the scarf and tied her neck and came back to auto-rickshaw. Both of them rounded her and tied her, but suddenly a light from the back appeared and they get scared because people began to come there. Rakesh jumped in front of auto-rickshaw and start the auto-rickshaw and raced away with prosecutrix and Shanker. As per prosecutrix she was naked and tried for rescue and to get help from outside then Shanker pushed her back and hit again to stop the prosecutrix from crying for help. At the time of said incident, villagers came and run behind the prosecutrix. They were having big sticks in their hands but they could not stop the auto-rickshaw but they hit prosecutrix at that time, the prosecutrix caught her head because she was shocked. According to the prosecutrix allegation, her bag alongwith mobile, travel book, sunglass, money, pass-port and vision glass were taken by the accused appellants and during the course of fighting and hitting her earrings were also fell in the auto-rickshaw. Her clothes were off which remained in the auto-rickshaw alongwith the other articles when she jumped out from the auto-rickshaw. According to the prosecutrix in the incident all the cloths were torn and only one shirt remained on her body. When villagers saw the that there is no cloth on the body of the prosecutrix they gave their trouser and they tried to calm down and satisfy her that you are safe now because police is called. According to the prosecutrix the villages provide water and cleaned her hair but at that time she was felling very bad. Both the accused rushed from the place of occurrence in the auto-rickshaw alongwith articles, thereafter, police came and prosecutrix tried to talk and narrated whole story. The police party put the prosecutrix in the police car and take her to the police station where written report (Ex. P/1) was written in her own hand writing upon which she put her signatures ''A to B'' and submitted to register FIR. It is stated by the prosecutrix in her statement before the Court that she was medically examined by the doctor to whom she disclosed her all the injuries, which were scratches on the chest, feet and both the arms and cheeks so also inside the thighs and other part of the body. The doctor medically examined her for the rape and checked her vagina and collected all the materials including pubic hair from the body. After completion of all the formalities for the purpose of medical examination and obtained signatures of prosecutrix upon the medical report (Ex. p/2). Thereafter, the prosecutrix came back to the police station. The police recorded her statement under Section 161 Cr.P.C., so also, her statements were recorded under Section 164 Cr.P.C. by the Magistrate in which she narrated whole incident. After registration of FIR the prosecutrix went on spot with the police and showed the place where occurrence took place. The police prepared site plan (Ex. P/3) whereupon she put her signatures, which is A to B upon Ex. P/3. The police found that glass of vehicle was broken in the incident, therefore, broken glasses were recovered from spot. The prosecutrix took police at a place from where the accused took prosecutrix in auto-rickshaw for the first time. The site plan (Ex. P/4) was prepared upon which signature of prosecutrix were obtained. The police prepared all recovery papers also and the articles, which were taken away by the accused were also identified by the prosecutrix because accused were arrested alongwith the auto-rickshaw in the same night. In the cross-examination, so many questions were put by the counsel for the accused, but the prosecutrix categorically stated in her statement that she was rapped brutally by both the accused Rakesh and Shanker and she was forcibly taken at unknown place. The prosecutrix was not knowing geography of Jodhpur, therefore, she did not point out, which is the place, what is the name of the place where the incident took place but said in her statement in the Court that both the accused persons present in the court committed rape upon her and she was found without cloths upon her lower part of body to the villagers. Meaning thereby prosecutrix has completely supported her allegation of oath before the court and said that she participated in whole of the investigation and in the investigation her statements were recorded by the Magistrate. The prosecutrix further corroborated in her statement that in the identification proceedings conducted in the Central Jail, Jodhpur correctly identified the accused appellants in jail. The identification parade paper of Shanker Lal is Ex. P/6 and identification parade papers of accused Rakesh is Ex. P/7, upon both the documents her signatures were taken after identification parade, in which she has categorically identified both the accused appellants to commit offence of rape.

PW-2 Ashok Kumar Sharma was working as Judicial Magistrate No. 6, Jodhpur. The said Magistrate stated before the trial court that upon application (Ex. P/8) moved before the CJM, Jodhpur the Chief Judicial Magistrate, Jodhpur issued directions to him to conduct identification parade. The application was filed by Bhagwan Dan Ratnu, CI upon which date 13.5.2005 was fixed for the purpose of identification in the Central Jail, Jodhpur. After issuing notices to the witnesses, a letter was sent to the Superintendent, Jail for the purpose of preparation for identification parade. PW-2 Ashok Kumar Sharma categorically stated that in the identification proceedings the prosecutrix correctly identified accused Shanker Lal which is evident from the proceedings Ex. P/6 prepared by him under his signatures. Similarly, accused Rakesh was also identified in the identification parade by the prosecutrix and Ex. P/7 was prepared whereby accused Rakesh was identified by the prosecutrix. The prosecutrix put her signature upon the said identification paper. Meaning thereby, the witness PW-2 Ashok Kumar Sharma has categorically proved that the accused appellants were identified by the prosecutrix in the Central Jail.

PW-3 Ram Dev is a witness who was present at the time of inspection made by the Addl. Superintendent of Police at the place from where the accused took the prosecutrix PW-1 Petra Whust and prepared site plan Ex. P/4. Meaning thereby, the said witness proved the fact that prosecutrix was taken in the taxi by the accused appellants from Taj Hari Hotel, which is situated near Riktiya Bheruji Choraha. In the cross-examination, all the questions put to the witness were answered by the witness PW-3 Ram Dev who has supported the prosecution case with regard to preparation of site plan and other documents.

PW-4 Bhiya Ram and PW-5 Hema Ram they are very important witnesses because in the night on 11.5.2005 at about 9-9.30 pm when they were in their residential houses (Dhani) they heard huge cry of lady from the side of Jojari river, at that time, Hema Ram, Bhiya Ram, Om Prakash and Gordhan immediately rushed to the place of occurrence from where noise of crying was coming.

According to the said witness PW-4 Bhiya Ram and PW-5 Hema Ram they went on spot from the way inside the river and Mudia road and Gordhan Ram and Om Prakash rushed to the place of occurrence through dammar road. When they reached, one Badri Ram Jat also came on tractor and after few minutes and they saw that one foreign lady and two other persons were inside the auto-rickshaw and auto-rickshaw was standing there. When witness PW-4 Bhiya Ram and PW-5 Hema Ram, Om Prakash and Gordhan went on spot both the accused start the taxi and tried to ran from the place of occurrence. The witness PW -4 Bhiya Ram and PW-5 Hema Ram and all the persons tried to stop taxi but accused appellants did not stop the taxi and went away from the place of occurrence, at that time, a blow of Lathi was inflicted by Om Prakash upon the taxi and other blow was given by Hema Ram upon the taxi and due to those hits mirror of taxi was broken. The foreign lady jumped from the taxi wearing only one Chola and no other cloths found upon her body. According to witness PW-4 Bhiya Ram and PW-5 Hema Ram they were not understanding the language of prosecutrix but there were number of injuries upon hand, legs and face of the said lady, therefore, obviously they understand that rape is committed with the lady by the accused who ran away from the place. The relevant part of the statement of PW-4 Bhiya Ram reads as under:

The witness Badri Ram PW-18 gave his trouser to the prosecutrix because there was no cloth upon the lower part of her body.

The witness PW-4 Bhiya Ram, PW-5 Hema Ram and PW-18 Badri Ram categorically stated in their statements that after hearing huge cry of prosecutrix from the side of Jojari river at about 9-9.30 pm in the night of 11.5.2005 they immediately rushed to the place from where noise of crying of lady was coming and saw the incident of rape. Upon perusal of statement of both these witnesses it is obvious that these witnesses are supporting the allegation of prosecutrix PW-1 Petra Whust that rape was committed by the accused appellants on her. The relevant part of the statements of PW-5 Hema Ram reads as under:

PW-6 Rawata Ram was working as ASI at the Police Chowki Bhagwat Ki Kothi, Police Station Shastri Nagar, Jodhpur and in the night of 12.5.2005 one auto-rickshaw RJ-19-P-9332 and certain articles which is trouser of lady, hairs of lady, undergarment of light cream colour, one bra and yellow colour earrings and some other material were recovered and taken in possession. The front side of the said auto-rickshaw was also broken and pieces of glass of mirror were found in the auto-rickshaw. As per witness PW -6 Rawata Ram all the articles were taken into custody alongwith auto-rickshaw vide Ex. P/15 in which all the articles were put after marking them. The cloths were also taken in possession by the police. The witness PW-6 Rawata Ram specifically said that accused Rakesh was arrested in front of him by the ASP vide memo Ex. P/18, upon which his signatures A to B is appearing. The materials found from accused Rakesh were also taken into custody vide Ex. P/19. Meaning thereby said witness is supporting the recovery of articles from auto-rickshaw and arrest of accused Rakesh, therefore, his testimony is to be accepted to prove the prosecution case.

PW-7 Chandidan working on the post of ASI on the date of occurrence said before the Court on oath that on 12.5.2002 he was posted as ASI at Police Station, Shastri Nagar and on that date a information was received that two motorcycles are collided near Dev Nagar Salasar Handloom. Upon the said information when he was going in the jeep one message was going on upon the wireless that near village Basani Benda one foreign lady has been rapped and assaulted by someone and accused have rushed away from the place of occurrence. One more message was received by him that due to blow given by the villagers upon the auto-rickshaw the front mirror of the taxi has broken. The witness Chandi Dan categorically stated that at the time of patrolling in the night at about 3.00 pm one taxi RJ-19-P-9332 was coming on the road and upon asking the taxi driver stopped the taxi and said that his name is Shanker Lal and in the back side seat of auto-rickshaw one trouser of black colour and bra of cream colour, undergarments were found and some pieces of mirror were also spared over in the auto-rickshaw, therefore, under suspicion they took the said auto-rickshaw to the Police Station, Shastri Nagar.

The SHO, Police Station, Shastri Nagar took in possession all the articles and prepared Ex. P/15 whereby the taxi was also seized by the police in the investigation. According to the witness PW-7 Chandi Dan the accused Shanker Lal was searched and arrested by the police vide Ex. P/21 and one pass port and one dollar and one bronze coin alongwith two cards and purse were found in the taxi. The said witness proved Ex. P/15 whereby taxi in which rape was committed and articles were recovered and also proved Ex. P/21 whereby ASP arrested the accused Shanker Lal. Meaning thereby the said witness has completely supported the prosecution case.

PW-8 Sohan Ram was incharge of Malkhana. He has stated categorically that all articles, which were handed over to him were kept in sealed cover for the purpose of investigation.

PW-9 Ladu Nath stated that he is resident of Partapnagar, Jodhpur. In the night at about 4.00 pm on 12.5.2005 the police officials stopped one auto-rickshaw RJ-19-P-9332, at that time, the front mirror of auto-rickshaw was broken and upon asking from where you are coming and what is your name, the said taxi driver said that his name is Shanker Lal and under suspicion Shanker Lal was taken to Police Station, Shastri Nagar where Ex. P/15 was prepared on which he put his signatures. As per the said witness Shanker Lal appellant was arrested vide Ex. P/21 and his shirt as recovered and vide Ex. P/16 accused Rakesh was arrested by the police and in his pocket one mobile was recovered. Meaning thereby the witness PW-9 is supporting the prosecution case that auto-rickshaw RJ-19-P-9332 was stopped and after search the material/articles were taken in possession by the police in the investigation.

The witness PW10 Durga Ram has proved the Ex. P/5 by which the black pent of prosecutrix was taken in possession.

PW-11 Govind Singh was ADM City, Jodhpur. The said witness supported the investigation of prosecution case. Likewise, PW-12 Ram Singh stated before the Court that on 11.5.2005 he was working as SHO, Police Station, Dangiyawas. On that date, in the night at about 11.30 pm a wireless message was received by him that near Jojari river of Basni Benda, auto driver and one other person committed loot upon one foreign lady and villagers and foreign lady are standing there, at that time, said witness rushed to the place of occurrence where foreign lady and other villagers were found and upon making inquiry it is informed to him that two auto-rickshaw drivers committed an offence of rape and they run away from the place of occurrence. It is also stated that villagers tried to stop the auto-rickshaw but they failed to stop auto-rickshaw but two Lathis blows were made upon the taxi and due to said blow the front mirror of auto-rickshaw has broken. The prosecutrix was given assurance that you are safe and upon asking by the witness PW-12 Ram Singh it is stated by her that she had come to Jodhpur and staying in Haveli Guest House and today after taking dinner from Taj Hari Hotel when she was going back to the Haveli Guest House she hired auto-rickshaw to reach Haveli Guest House but they forcibly took auto-rickshaw near Jojari river and committed rape upon her and in the incident her all cloths were destroyed and her mobile, passport, purse and rupees were taken away by the auto-rickshaw drivers. Meaning thereby the said witness is supporting the prosecution case.

PW-13 Smt. Pana Choudhary. It is stated by her that on 12.5.2005 she was posted as Sub-Inspector in Udaimandir Police Station where she received information for medical examination of lady against whom rape was committed near Jojari river. Upon information, she reached to the Police Station, Shastri Nagar from where after taking prosecutrix with her, she went to Mahtama Gandhi Hospital where the prosecutrix give her pent vide Ex. P/5. The said black pent was taken into possession for the investigation.

PW-14 Ganpat Lal was working on the post of Head Constable at Police Station, Shastri Nagar, Jodhpur submits that he was incharge of Malkhana on the relevant date and while working on the said post, the articles were deposited in the Malkhana and entries were made by him in the register.

PW-15 Sukhdev Prajapat categorically said that he took all seized articles to send them in the office of FSL, Jaipur and deposited the same in the office of FSL for analysis/examination.

PW-16 Dr. PC Vyas stated on oath in the court that on 12.5.2005 when he was working as Associate Professor in MLC Department of Mahtama Gandhi Hospital being member of medical board conducted medical examination of one German lady alongwith other member Dr. Ranjana Sharma when prosecutrix was produced before us by Smt. Pana Choudhary, SI, Police Station, Udaimandir and medical report Ex. P/2 was prepared. In the statement he said that on medical examination of the body following injuries were found upon the body of prosecutrix. The relevant part of the statement of Dr. P.C. Vyas PW-16 reads as under:--

No other injuries were found upon the body of prosecutrix PW-1 Petra Whust. The said witness gave its opinion that there was evidence of recent rape. Meaning thereby, the medical evidence has categorically supported the allegation of rape levelled in the FIR by the prosecutrix.

PW-17 Mahaveer Singh Khinchi was working as Constable in SP Office. He was looking after the work relating to FSL and in this case, Constable Sonaram came with two sealed packets C and H and after making all formalities for sending those articles to the FSL, the forwarding letter Ex. P/23 was prepared by him and articles were sent to the FSL.

The witness PW-18 Badri Ram stated on oath in his statement that on 11.5.2005 when he was going near Jojari river on tractor at that time, he heard cry of a lady, therefore, he rushed to the place of occurrence where Bhiya Ram and Hema Ram were already standing and they tried to stop auto-rickshaw, but both the persons sitting in the auto-rickshaw ran away from the place of occurrence, at that time, due to Lathi blow given by Hema Ram and Bhiya Ram upon auto-rickshaw the front mirror was broken. The witness Badri Ram PW-18 stated that one lady was standing there without cloths on lower part of body to whom he gave his pent for wearing. Thereafter, other persons came on spot, but auto-rickshaw driver run away from the place of occurrence. The said witness came on spot just after hearing the cry of prosecutrix. The statements of PW-18 Badri Ram reads as under:--

PW-19 Bhanwar Dan Ratnu, Investigating Officer of the case working as SHO of Police Station, Shastri Nagar on 12.5.2005. It is stated by him that upon written complaint submitted by PW-1 Petra Whust in English language FIR No. 164/05 was registered for the offences under Sections 365 , 366 , 376(g) and 394 /34 IPC and all further investigation proceeding was conducted by him.

PW-20 Praful Kumar, CEO North said in the trial that as per the instructions of higher authorities of police department he received the file for investigation, on the same day ASI Chandi Dan came with auto-rickshaw RJ-19-P-9332 alongwith driver Shanker Lal and upon search of the auto-rickshaw one purse of Mehroon colour and 3 photographs of prosecutrix as well as one American dollar, one bronze coin, two cards and Rs. 460/- were found in the pocket of accused Shanker Lal. From his auto-rickshaw one trouser, underwear, bra and other articles were found, which were taken in possession and accused Shanker Lal was arrested by him vide Ex. P/1 and all the materials collected were sealed.

A long cross-examination was made by the counsel for the accused appellants but he has categorically proved that complete investigation was conducted by him in accordance with law.

In the statement recorded under Section 313 Cr.P.C. both the accused appellants denied the allegations levelled against them in the evidence of prosecution.

We have scanned the entire evidence adduced in the trial by the prosecution to prove the allegation of rape against the accused appellants. It emerges from the assessment of evidence of prosecution witnesses that all the witnesses transparently proved the allegation of rape by reliable and trustworthy evidence against the accused appellants so also supported the allegation of forcible rape levelled by the prosecutrix PW-1 Petra Whust. The written FIR submitted by the prosecutrix was thoroughly investigated by the police and during investigation statements of prosecutrix were recorded on oath under Section 164 Cr.P.c. by the Judicial Magistrate No. 6, Jodhpur PW-2 Ashok Kumar Sharma, so also identification parade was also conducted by the PW-2 Ashok Kumar Sharma as per provisions of law, in which the prosecutrix identified both the accused appellants Shanker Lal and Rakesh who committed rape with her. In support of allegation the witness Dr.PC Vyas PW-16 gave his opinion in the medical report that there is evidence of rape. In view of above, it is obvious that prosecution has proved its case beyond reasonable doubt by leading trustworthy and reliable evidence, therefore, after assessing the entire evidence of the prosecution, the learned trial court gave finding that it is a case in which the accused appellants are guilty for committing offence.

We have considered all the arguments and ground taken by the accused appellants against the finding given by the learned trial court to hold the accused appellants guilty. In our opinion, the arguments and grounds raised by the appellants are totally baseless and far from the truth. More so, it is a case in which the accused appellants by their act not only damage the prestige of our country by committing rape with foreign lady who visited as tourist but committed an offence which is against the society. Learned counsel for the appellant invited our attention towards the judgment of Division Bench of this Court delivered in the case of Yad Ram Vs. State of Rajasthan, and submits that for awarding maximum punishment in gang rap the prosecution has to prove that the appellant has acted with pre-arranged plan, prior meeting of mind and with element of participation in action but in this case all these elements are absent, therefore, even if prosecution has established the case beyond reasonable doubt in absence of other circumstances, the sentence can be reduced to already undergone.

After perusing the aforesaid judgment of Division Bench of this Court in case of Yad Ram (supra), we are of the opinion that it is very serious case in which a foreign lady is subjected to rape in the night when she was returning to the Haveli Guest House where she stayed. We have also considered the facts and evidence of this case in the light of the aforesaid judgment. In our view, it is not a case in which lenient view is required to be taken because the wealth of country and civilization can be judged by the place given to women in the society. One of such factors that justify the greatness of Indian ancient culture where honorable place of respect is given to the women. Further this Court cannot loose sight of the basic feature of our culture that we are treating guest as God by using phrase but accused appellants not only committed heinous offence of rape with foreign guest but tainted the trust of our country. Therefore, it is a case in which the accused taxi drivers not only failed to provide service to the guest to reach at the place where she was stayed but they committed rape with helpless foreign lady who suffered mental and physical agony due to rape committed upon her by the accused appellants. In our country, the prestige of lady and guest is on higher pedestal but the accused appellants destroyed the faith of our culture, therefore, no error has been committed by the learned trial court to hold accused appellants guilty for offence under Section 376(2)(g) IPC and for offence under Section 365 , 366 and 395 IPC because the prosecution has proved its case beyond reasonable doubt by leading trustworthy and reliable evidence.

In view of the above discussion, this instant cr. appeal is hereby dismissed.