CM.Totla - (1.) CHALLENGED is appellant's conviction and awarded sentence of five years and line Rs. 100/- for the offence of Section 376 IPC per Judgment dated 31.08.89 in Sessions Case No.3/89 before the Court of Addl. Sessions Judge Jaisalmer.
(2.) ALLEGED brief facts per prosecution are that on 08.03.89, one Shri Bharat coming with his wife and two foreign national female at police station Sam informed that with them were three women foreigners of them one who went for camel ride with Bhopa has not come back making entry No. 89 of this information in Roznamcha Ex. P/ 13, Head Constable Iswar Singh PW/5 and Constable Satnam Singh proceeded for search. At around 9.15 these constables along with Shri Bharat and three foreign women and hotelier Prithvi Raj PW/4 arrived at P.S. and Ms V PW/2 lodged FIR Ex.P/1 which is like this :- To SHO Police-Station Sam District Jaisalmer (Rajasthan) The camel ride started at 5.30 p.m. from 5 a.m. to sand-dunes the two camels separated and took different routes. He started to say thout "make me happy" I said "No" of course. He took me far away by saying "Oh, the Let's gazelle said we followed it ?" Finally he stopped the camel and it lay down. He said "I won't take you back until you make me happy". He said this many times. I made many objections, started to cry, I said I would walk back but he said that the taxi would have left already. I asked which direction to walk and he pointed in the wrong direction clearly. He took the blanket from the camel and laid it out. It should probably still be wet. He pushed me down, held my hands back said he would make me pregnant he said he won't make it outside of me, not inside. He forcefully raped me. At first he couldn't but then he put some spit on me. He wiped himself and forcefully wiped me. Afterwards he brought me back on the camel. He said his name was Bhopa (Muslim) and no one goes against him. He said keep quiet and go back to Jaisalmer. We returned at 8:45 p.m. My friend Janet and Cariang O'Reilly Mary Jeanings, Arne Jenings. Bharat Dave (India) and Prithvi Raj were waiting. Prithvi Raj called the Police and got a call for the man. So/- Parithvi Raj Sd/- 8.3.89, Hotel Sir Narayan Vilas (Vibeke Knudsen) Vibeke Kundosen From Denmark Cedcrvaenget OF 9000 AAC Borg (City Name ) Janet Hide 115, Bramhau Lane South Bramhall Stoct Port Cheshire." On above report presented by Ms. V also are signatures of Ms. J. and hotelier Prithvi Raj PW/4. Per endorsement of SHO PW/8 on report Ex.P/1 for registering case prosecutrix Ms. V stating that around 8 p.m.. Bhopa forcibly did rape her who is brought along by policemen, Making Roznamcha entry No.189 Ex.P/14 of returning of constables as above, on the basis of report Ex.P/ 1, FIR No.8/89 Ex.P/8 registered for the offence of Section of 376 IPC, SHO PW/8 Initiated investigating on very obtaining underwear of Ms V seized and sealed it marking B on packet and preparing memo Ex. 17 2. Appellant accused arrested at 10 p.m. vide memo Ex.P/12 and his worn underwear along with pant like pyjama-also seized and sealed preparing memo Ex.P/10 and packet marked as A. The blanket (Razai) having, some semen like stains seized and sealed preparing memo Ex. 173 and packet marked as C. Around 0030 a.m. (midnight of 8 & 9th) prosecutrix medically examined by PW/ 3 Dr. Chandrashekhar and reports prepared are Ex.P/4 and Ex.P/5-accused also examined around 1.15 a.m, report being Ex.P/9. Samples of vaginal smear and pubic hair of Ms. V taken and sealed at the time of examination and similarly prepared slides from glands of penis of accused examining him also forwarded by Medical officer to chemical examiner through SHO vide respective memos Ex. P/6 and P/8. Sho visiting the place of occurrence next morning prepared memo and site plan Ex.P/11. Packets forwarded by police station to S.P. office and from there, laboratory, carried by constable PW/6. Getting recorded statements of witnesses, statements of PW/1 and PW/2 before Judicial Magistrate and after investigation, charge sheet submitted. Report of FSL is Ex. P/7 Appellant charged for the offence of Section 376 IPC that he in evening of 08.03.89 at about 7 O'clock at sand dunes Sam did rape Ms. V. by committing sexual intercourse forcibly and against her will and wishes-denying claimed trial. Among eight prosecution witnesses examined, PW/2 is prosecutrix in relation to whom charge for commission of offence is - PW/1 is the person who was fellow traveller with PW/2 who accompanied PW/1 for camel ride upto a point in between. Prithvi Raj PW/4, a hotelier, deposes of rendering some assistance on being informed of non- returning of Ms. V by PW/1 and then accompanying them to police station. Prithvi Raj and Bhima Singh PW/7 are also witnesses of site inspection. Head Constable Iswar Singh PW/5 deposed of proceeding for search of Ms. V. SHO PW/8 registering FIR, investigated while Constables PW/6 and PW/9 relate to forwarding and, delivering packets at FSL.
(3.) DR. Chandra Shekhar PW/3 medically examined prosecutrix and accused and proves reports Ex.P/4, P/5, P/6, P/8 and also collection of samples. Appellant explains that witnesses tell lie and Prithvi Raj used to ask for commission of camel safaris conducted through him and for that reason, he managed this false case. No defence evidence led. Learned Addl. Sessions Judge arriving at conclusion of forcible commission of the act convicted and sentenced the appellant as above. Learned counsel for the appellant thrustly argued that incident is totally consensual. Learned counsel submits that (i) Ms. V PW/2 was wearing one piece dress i.e. a suit covering whole body which cannot be removed except by herself and certainly not against her will and resistance, so impossible is the said act without consent (ii) no marks on person to show any act against wishes (iii) presence and availability of Prithvi Raj PW/4 is too much coincidental - highly improbable - and he on enemical terms to appellant for business reasons as he used to coerce payment to him by appellant (iv) prosecutrix had taken ride sitting with appellant and continuous riding on camel speaks for itself (v) per prosecutrix herself such activity not a fresh experience. Drawing attention towards statements of PW/2 thrustly submitted that if any such act was, it was on her insistence and consent with the ride encouraging it. ;