1 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 347/1989 Bhopa S/o Sh. Jiya by caste Musalman, R/o Laxmano Ki Basti P.S. Sam, Distt. Jaisalmar VERSUS State of Rajasthan Appeal Under Section 374 Cr.P.C. against the judgment dated 31.08.89 passed by Additional Sessions Judge, Jaisalmer in Sessions Case No. 3/89. Date of Judgment : 04th January, 2010 PRESENT HON’BLE MR. JUSTICE C.M. TOTLA Mr. Ashok Upadhyaya for the appellant. Mr. S.G. Ojha ] Mr. K.K. Rawal, P.P. = = = = BY THE COURT :- REPORTABLE Challenged is appellant’s conviction and awarded sentence of five years and fine 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. 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 2 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) 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 alongwith 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 PM from 5 AM 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 c gazelle said we followed it ?” Finally he stopped the camel and it lay down. He said “I wont 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 i said he would make me pregnant he said he wont make it outside of me, not in side. 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 PM. My friend Janet and Cariang O'Reilly Mary Jeanings, Arne Jenings. Bharat Dave (India) and Prithviraj were waiting Prithviraj called the Policle and got a call for the man. Sd/- Parithvi Raj Sd/- 8.3.89 Hotel Sir Narayan Vilas (VIBEKE KNUDSEN) VIBEKE KUNDESEN From Denmark CEDERAVAENGET OF 9000 AAC BORG (CITY NAME) JANET HINDE 115, BRAMHAU LANE SOUTH BRAMHALL StoctPORT CHESHIRE.” On above report presented by Ms. V also are signatures of Ms. J PW/1 and hotelier Prithvi Raj PW/4. Per endorsement of SHO PW/8 on 3 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) report Ex.P/1 for registering case prosecutrix Ms. V stating that around 8 PM, 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 376 IPC. SHO PW/8 initiated investigating on very day obtaining underwear of Ms V seized and sealed it marking B on packet and preparing memo Ex.P/2. Appellant accused arrested at 10 PM vide memo Ex.P/12 and his worn underwear alongwith 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.P/3 and packet marked as C. Around 0030 AM (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 AM, 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 & 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, chargesheet submitted. Report of FSL is Ex.P/7. 4 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) 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 traveler 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. 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 5 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) 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. Learned PP argues that provenly the appellant drived PW/2 Ms. V to a distant place at dawn, committed the act against her wishes and by use of force and thus, proved is the offence. Argued that had it not been against the will and forcibly, there was no reason for such allegation, particularly when a tourist Ms V a complete stranger visiting the place for only that day whose testimony finds strong corroboration from PW/1. Thoughtfully considering arguments, carefully gone through the evidence and the judgment assailed. A look at the evidence discloses that established from the evidence of SHO PW/8, prosecutrix Ms. V PW/2 and PW/4 is that (i) underworn clothes, underwear of PW/2 seized within an hour or two of lodging FIR (ii) underwear and pyjama of accused seized within 3-4 hours of incident soon after his arrest at 10 PM (iii) Razai (blanket) allegedly laid on ground while committing the act also seized soon. Also proved is that at the time and while examining PW/2 Dr. Chandrashekhar PW/3 Medical Officer, Govt. Hospital, Jaisalmer collected and sealed samples of her vaginal smear and 6 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) pubic hair. Similarly, while examining accused, smear from penis glands taken and slides were prepared. Endorsement of this is also on respective medical reports Ex.P/4 and Ex.P/9. These articles in sealed packets were forwarded by PW/3 for chemical examination to SHO and handed over to Head constable malkhana incharge PW/5. Ishwar Singh PW/5 proves that he keeping all above packets safely in Malkhana handed over to constable Hem Singh PW/9 who on very same day handed over at Superintendent of police office to Constable PW/6 and Constable PW/6 handed over with forwarding letter to Constable Dayanand PW/5 for depositing at laboratory. FSL report Ex.P/7 also mentions that five packets of this FIR No. 8 with forwarding letter were deposited by constable Dayanand PW/5 on 14.03.89 with intact seals. Of the above articles , on the underwear of prosecutrix, on underwear of accused appellant, on razai (blanket) and also on vaginal and urethral smears was human semen. Human semen on these clothes do not only corroborate but rather in a way proves the sexual activity. Defending appellant, thrustly submitted is about PW/2's willing camel ride with appellant with full knowledge of ensuing necessary physical contacts do show and that per learned counsel disclose willingness and even inducement of such acts by prosecutrix - if not initially even then at certain point of time (during ride). Argued that had it not been so, there was no reason to lay the rajai on floor by appellant and then continuing to wear same clothes even after the act. Also submitted that per her own admission, this was not the first experience of her. With above arguments also significant is that appellant was professional for such camel safaris and camel riding and so in absence of 7 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) any proven specific fact, the argument advanced cannot hold. Regarding consent, considering statements of PW/2 and also PW/1, there is no strength in argument that PW/2 desired to ride or anticipated continuous riding with the person accompanying i.e. the appellant and above all responsible was the person incharge the appellant who happen to be a professional for such ride/safaris. Anyhow, evaluating evidence, the argument is meritless. Accordingly to PW/1, she was with PW/2 since four days prior to incident, thus fellow tourist friends. Pw/1 and PW/2 both say that they both friends alongwith other friend Julie reached Jaisalmer in morning and had to leave by night train. Both say of having departed at about 3 PM afternoon with other tourists in a jeep to ‘Sam’ sand dunes and camel ride. PW/1 and PW/2 clearly narrate of Indian tourists with them in the jeep and that they reached and began camel riding at about 5:30 PM for observing sun set. Ms. J PW/1 depose that she and PW/2 both were on two different camels - owners of camels accompanying them, they moved on same way and were together for about twenty minutes then her driver (camel owner) suggested them to proceed to different directions so the drivers diverted in different ways promising to meet later at sun set. Per PW/1 on way and even at the time of observing sunset, she asked his camel owner as to where PW/2 was. PW/1 asserts that she insistingly kept inquiring for Ms. V PW/2 and her driver replied smilingly with gestures of they having gone for sex – using a word “nookie”. PW/2 states that after 20 minutes of traveling together on different camels she and friend PW/1 split in different directions with promise of camel drivers to meet at common sunset point. 8 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) PW/1 further says that after she and PW/2 parted to different ways, she observed sunset and continued to inquire about the friend and returned at starting point where other fellow tourists were also and they all waited long till 7:45 PM and then reported the matter through and with an Indian gentleman (Bharat and his wife – who with PW/1 first reported) to police – then they came back at ‘Sam’ (place of sand dunes) and there when they, policemen, Prithviraj and some other were standing by road side, at about 8:45 PM came Ms. V with her camel rider – Ms. V was weeping a lot who told of camel rider having raped her. Then they proceed to Police station where Ms. V lodged the report. Regarding her own camel rider PW/1 depose that when on his and other drivers' yelling, driver of PW/2 not responded he (PW/1's driver) left. Ms. V PW/2 the prosecutrix deposing same as PW/1, for and till their taking different ways state that on way the appellant indicated towards a animal “Gajjal” (“Hiran”- deer) and asked her to take photo but as she prepared for taking snap, animal went far away – then after observing sunset and as they were far away and getting late, she asked the driver to hurry back but the driver told him that he would not and asked (her to) “make me happy” and asked her for sex. PW/2 depose that to this, she refused and they continued riding a little while – then appellant made camel sit down and refusing to go back again asked to make him happy and then he despite her pleading and offerings to take all her money, camera etc, spreading the blanket over the sand and holding her hands taking off clothes and pushing her, committed and completed the act. All these circumstances being at a distant and isolated place at dawn with or around no other fellow, were all created only and only by the 9 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) appellant. Non resistance by somewhat violent means, in such circumstances, very certainly cannot be indicative of consensus. Making a person in almost a helpless state with no other choice except to abide with wishes of person dictating desire and then the ensuing act is not and cannot be willingness. Ms. V, thus, was put in such a position of fear and helplessness as to be unable to resist or spare herself. There can be no hesitation in holding that the act was against her consent and wishes. PW/2 says that she was crying all the way – appellant asked her to sit her on back side to make drive fast and they reached at the starting point where jeep and other fellow tourists, drivers were and she narrated the entire incident to PW/1 J and other travelers and there present also were two policemen and Prithviraj. PW/2 says that then they proceeded to police station where she lodged the report and accused was taken in custody. There is absolutely no reason to not to believe PW/2. Her version stands corroborated by PW/1. As is explicitly mentioned in FIR Ex.P/1 and also deposed by SHO PW/8 that Shri Bharat alongwith two other women did report about act. Of the three women, obviously one is PW/1 and second is PW/2 and third must be wife of a fellow tourist (Bharat) as is stated by PW/1 and PW/2. These persons (Bharat and his wife) were in no way related or acquainted with appellant or PW/4 and not even prior acquaintees of PW/2 and PW/1 which further fortifies truthfulness of the version of PW/2 and rules out any possibility of manipulation and doctoring by or because of Prithvi raj PW/4. Even otherwise, no reason to doubt any part of testimony of PW/2. 10 S.B. Criminal Appeal No. 347/1989 (Bhopa Vs. State) Non-returning of Ms. V PW/2 was reported at about 7-7:30 PM as is deposed by PW/5 in addition to PW/1. Ishwar Singh PW/5 and SHO clearly state that Ms. V when arrived at P.S. at about 9 PM was in weepingly sorrow and disturbed state. Head Constable Ishwar Singh PW/5 state that on being informed by Shri Bharat and fellow tourists and recording in Roznamcha, he and other constable departed to sand dunes where the accused appellant reached with Ms. V and Ms. V then and there stated of rape by the appellant. Thus also proved is that very instantly and no sooner she reached the starting point, where other persons and passengers were, Mst. V insinuated the appellant. Thus, stands proved that accused committed the offence of rape. Though the act is of the year 1988 to which almost 21 years have elapsed but the incident is with a tourist and by a person in capacity of trust, so no mitigating circumstance exist and can be for interfering with the sentence passed by the learned Sessions Judge. For the above reasons, there is no force in the appeal. The conviction of appellant and awarded sentence 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) is upheld. Appellant to surrender forthwith and learned trial court is also directed to do needful for taking him in custody to serve out the remaining sentence. As above, the appeal is rejected. (C.M. TOTLA), J.