Gopal Krishan Vyas, J. - (1.) 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:
(2.) 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 WustPetra WustPlattershasse 14265193 WieshabadenGermany0049 (O) 1729976134My Cell Number is taken awayby 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. MATHURHON'BLE MR. JUSTICE MANAK MOHTA Suo Moto. 1. 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. 2. 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. 3. 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. 3. 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."
(3.) 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.;