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 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 Bom