Hon'ble Mathur, J. - (1.) BY the judgment impugned dated 30.4.2008 passed by learned Additional Sessions Judge (Fast Track) No. 1, Udaipur, the accused appellant has been convicted for the offences punishable under Sections 376 and 450 of the Indian Penal Code and is sentenced as under: u/s. 450 IPC - Seven years' rigorous imprisonment and a fine of Rs. 10,000/ - and in default of payment of fine to further undergo six months' additional simple imprisonment. u/s. 376 IPC - Life imprisonment and a fine of Rs. 25,000/ - and in default of payment of fine to further undergo one year's additional simple imprisonment. To unfold initial facts of the case it shall be appropriate to quote the First Information Report (Ex.P/1) submitted at Police Station Ambamata, Udaipur on 9.1.2008 at 02:15 PM, as under: I am a British Journalist and businesswoman and I have been traveling to India for the past two years. I arrived in India on the 18th December and I booked into the Pardeshi guest house. I have stayed at the guest house on two previous occasions as the owner, Prabat Singh also know as Rana. On the night of 23 December firoz Khan dropped me near the hotel so that i could eat and he could go back to his family home to sleep. it was the last day of Eid and i had spent a lot of time at the family home over the previous three days, it would not be normal for my partner to stay the night with me at the hotel out of respect for his family. I went to the roof of the guest house to the restaurant where Rana was having dinner with some Italian tourists and another Indian man. He came over and spoke to me and asked how i was, where firoz was and then returned to the table where he was drinking alcohol. He drinks a lot of whisky and i could see there was a bottle on the table as well as bottles of beer and possibly wine. They were also creaky quite intoxicated, and I remember him kissing one of the women before they all left the guest house. The other Indian Man who was with them returned shortly afterwards and they were laughing and joking together and then he also left. I then moved to my normal table and he then came and joined me bringing a bottle of whisky he clearly wanted to drink more. We were talking and he kept trying to upset me and to discredit Firoz Khan. He kept saying he didn't love me and that I was nothing to him, he said that my partner had grown up on the streets and he was scum I was upset. He kept saying that he wanted to be with me. I made it very clear that I was not interested in him and that I had no interest in a relationship. I could see he was trying to upset me and he said a lot of bad things about my friend's family and then suddenly he viciously grabbed me by the hair twisted my head round trying to kiss me. I pushed him away and then again told him I was not interested in him. I thought it was the drink talking. He is not a particularly big man but it was clear that the alcohol had made him crazy and i did not expect this. I was shocked and told him so he apologized and said he was sorry that he was jealous of Firoz Khan and that he was attracted to me. He kept saying he was sorry and that he liked me very much. I told him not to be so stupid and that I was with someone else. Shortly before his happened I took sleeping tablets at the table, in front of Rana, I explained what the tablets were and said that I was going to my room. I had enough and wanted to sleep. It was cold and so I asked for blankets there had not been enough the night before. By this time the boy he employs was asleep on the kitchen floor, where he normally sleeps. I decided to leave the terrace and go down the stairs to my room to sleep. The room is on the second floor and there is a terrace outside but there are no other guest rooms on this floor. He followed me down the stairs and I said good night, he apologized again and I went to bed alone. I was already in bed asleep without my clothes on as i normally do. I was then wakened by frantic knocking on the door. I was sedated from the sleeping tablets and I thought it must be and emergency and so i put on my vest and a sarong on to answer the door to Rana. E said he had more blankets for me. It was normal for him to enter the room with linen or breakfast so I did not anticipate what his motive was this time. He barged into the room and insisted on putting the bedcover on the bed himself. It was when he put the bedcover down on the bed that he pushed me down onto the bed from being and he forced himself on top of me and then raped me. First vaginally and then he tried to rape me anally. I was shocked and the effects of the sleeping tablet made me paralyzed. I eventually lost consciousness briefly and when I came round he was leaving the room. I could not move, I could not speak I felt like I was screaming but there was no sound coming from me. I sat all night crying and I now understand that Firoz Khan called the hotel three times to see where I was as it was unusual for me to not be up early. Each time Rana told him I was in my room. I called Firoz in the morning, several times, but I was so shocked I could not speak and eventually when I did speak he knew there was something wrong. I told him I needed to leave the hotel when Firoz saw me he could not believe the condition I was in I was crying and rocking and he asked me who had done this to me. I explained I needed to leave and then I would explain I was terrified and just wanted to leave as quietly as possible. Looking back now I was in terrible shock and I was in fear for my life. I went to the roof terrace and told Rana I was leaving the hotel I was very emotional and he chased me down the stairs, he kept saying "sorry, sorry" over and over again and begging me not to leave that he was sorry and he didn't mean to hurt me. He did not know that Firoz was waiting by my room and he changed this mood. I asked for my bags to be taken to the street and I shouted for Gudu (Ryaz) khan to take my bags. Rana did not expect Firoz to be there and Rana was real agitated. Firoz was sitting on the terrace with my camera bags and as I was leaving the hotel Rana followed me down the next flight of the stairs and caught hold of my by the arm he was then making his hand as if in prayer and he begged me over and over against no to tell Firoz what he had done to me as he said he would kill him. He begged me for himself and he told me if didn't tell anyone that would make everything ok. I understood his remarks to be another threat to me I felt that he would kill me. Since this was happened I have been in and out of hospital, GBH American and I was finally admitted to the Aravili hospital. I have had a stomach and urinary infection and I have also suffered a number of convulsions and was taken to hospital by ambulance following a convulsion at my hotel. I have had to have brain scans and I have been suffering from severe shock and I am having anxiety attacks. I have a recurring nightmare of someone knocking at my door in the night. This even happened to me when I was in admitted to the Aravili Hospital. I am fearful not only for myself but for my friend Firoz Khan and he is already being ostracized by the community. I am too scared to be here and yet I am too frightened to leave him behind. I feel like he may as well have killed my that night as because the fear I am left with is worse than dying. When this happened Beattie was not at the hotel. Since she returned to Udaipur she came uninvited to the Tiger Hotel to try and stop me from taking any action against Rana. I do not know how she knew where I was staying. At the time I was with my friend Firoz Khan, Caroline Davies and Ali. She told me he was half the size he was and that he had lost a lot of weight and size since this had happened. She begged me because she could lose everything, meaning her investment in the guest house I presume. She also threatened Firoz Khan that she would made trouble for him and me in the city. I believe that she works as a tour guide with German Nationals. I told her it was not appropriate to talk to her, I felt intimidated and I was crying. My friend Caroline took me to my room and then went back to collect Firoz and Ali as we felt it was not appropriate for her to be trying to intimidate them as well. I have not made a complaint earlier because I have been too sick in hospital. My friend Firoz Khan has begged me daily to take action with the police when I feel strong enough to do so. I was discharged from the Aravilli Hospital on Friday 4th January 2008 and I made a call to the British Consulate on the morning of the 5th January. My friend Caroline Davies returned from a tour on Monday 7 January and she has been supporting me since. It is very important to me that no details of this case are released to the press and I ask that you protect my identity and that of my friends. this is a true and accurate account.
(2.) AN investigation for the offence punishable under Section 376 Indian Penal Code was initiated and a report as per provisions of Section 173 Cr.P.C. was filed before the competent court alleging commission of offences punishable under Sections 376 and 450 of the Indian Penal Code. The competent court committed the case to the court of Sessions that framed charges on 15.1.2008 for commission of the offences punishable under Sections 450 and 376 Indian Penal Code. The accused denied the same and demanded trial. The prosecution supported its case with the aid of 15 witnesses (PW -1 to PW -15), documents Ex.P/1 to Ex.P/16 and two articles (Article -1 and Article -2).
(3.) THE accused availed opportunity as per provisions of Section 313, Cr.P.C. to explain all the adverse circumstances available in the evidence adduced by the prosecution and termed them as false and concocted. It was also stated by the accused that the complainant with the aid of Firoz Khan wanted to occupy "Pardeshi Guest House", therefore, he has been falsely and intentionally implicated in the case. In defence, the statements of DW -1 Lalita, DW -2 Balwant Singh, DW -3 Khuman Singh and DW -4 Anita Sharma were recorded and the documents Ex.D/1 to Ex.D/20 were exhibited. An article too was tendered in evidence as Article -3.;