AJAY Vs. STATE

JUDGEMENT

(1.) These appeals have been preferred by the appellants/accused persons against the Judgment dated 20th April, 2009 and Order on the point of Sentence dated 9th June, 2009 whereby the appellants have been convicted for the offence of gang rape and sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- each.

(2.) Brief facts relevant for the purpose of deciding these appeals are that the prosecutrix in this case had gone to see her husbands elder brother namely Rajender at Harsh Vihar on 19th January, 2005 since he was not keeping well. She got late and was coming back to her house around 10 pm. She had caught a bus which went out of order at Loni Road Gol Chakkar. She saw a TSR parked there and enquired from the TSR driver if he would take her to Yamuna Vihar. The driver said yes but in his TSR there were 3 persons already sitting besides the driver. She was accommodated on the back seat of the TSR. When she reached in front of C-Block Yamuna Vihar, TSR driver asked her about her last destination. She told her that she has to go near Tripal Factory. The TSR driver told her that other persons sitting in the TSR had also to go to the same place so she would be dropped near Tripal Factory. When the TSR reached Tripal Factory the driver of the TSR did not stop the TSR there despite her asking, rather he increased the speed of the vehicle. When she tried to raise noise, two persons sitting in the back seat pressed her mouth and gagged her. She was taken to a place behind Gokul Puri police station and taken to first floor of a house where all the four accused persons, including the driver of TSR gang raped her. She learnt the names of three of them as they were calling each other by names. After gang raping her, they took her in the TSR at about 2 - 2.30 am and threw her in Gali No. 2, near Tripal Factory and fled away. She reached home and informed about the incident to her husband. Her husband asked if she could identify the house where she was gang raped. She told him that she would be able to identify the house. So at about 6 am, in the morning, she accompanied her husband and was able to identify the house where she was gang raped. They found only one accused namely Raj Kumar present there. They both caught hold of accused Raj Kumar. He was beaten and brought to police station Gokul Puri by the husband and wife at about 8-9 am. At police station the prosecutrix narrated the entire story as to how she was gang raped and gave names of three of the accused persons and handed over accused Raj Kumar, caught by her and her husband to police. However, the police was not in a mood to register a case of gang rape and spoil the record of police station. ASI Darshan Kumar was assigned the job of convincing the woman that it was not good for her to lodge an FIR. So, ASI Darshan Kumar told the prosecutrix that she was a family woman, if she got FIR lodged, next day her name would appear in the newspaper and she would get defamed in the society and neighbourhood. She will have to undergo medical examination and suffer more at the hands of society and relatives, so she should not insist for registration of FIR. ASI Darshan Kumar assured her that accused Raj Kumar would be arrested in some other case. The prosecutrix was hence sent back. ASI Darshan Kumar, as such, prepared a kalandra u/s 107/151 Cr. P.C. and sent accused Raj Kumar to Special Executive Magistrate (SEM) u/Sec 107/151 Cr. P.C. so that bond be got executed from him. Summons of 107/151 Cr. P.C. proceedings were sent by SEM to the complainant/prosecutrix i.e. victim in the case and she appeared before the SEM on 16th February, 2005. Before SEM, she narrated that she was gang raped by the accused persons. The SEM was shocked. He seemed to be a sensitive person and called for an explanation of the SHO [SEM in Delhi is normally an officer of the rank of Additional Commissioner of Police, an officer senior in rank than SHO]. He sent a copy of statement of victim as recorded by him to the concerned SHO and asked the SHO for MLC of the prosecutrix. He also asked the SHO to report his Action Taken within two days. He forwarded a copy of his order to Deputy Commissioner of Police (DCP) as well. However, the SHO was still not prepared to register an FIR, as a police station is normally considered by the SHO as his personal fiefdom and he considers himself to be the king of this kingdom. He still did not record the FIR and a reply was sent to the SEM that the woman had not complained of rape. Rather, it was stated that she was accompanied by her husband and her husband had also confirmed her statement. The woman seemed to have given a false statement before the SEM at somebody elses instance. When the matter again came up before the SEM on 2nd March, 2005, the SEM found that no explanation was sent to him by the SHO, so he sent a reminder to the SHO as to why no action has been taken. It is only after the reminder was sent by the SEM that on 2nd March, 2005, an FIR was registered in this case by recording a fresh statement of the victim. In the fresh statement of the victim, all details regarding her approaching the police station with her husband on 20 January, 2005 along with accused Raj Kumar, handing over accused Raj Kumar to police, preparation of kalandara and her making statement before the SEM, reminder having been sent by the SEM were missing and FIR was recorded as if the woman had made the complaint of gang rape for the first time on 2nd March, 2005 to the SHO. After registration of FIR, on such insistence, the investigation was done in this case and after completion of investigation, a challan was filed and accused persons were sent for facing trial.

(3.) The prosecutrix is the sole witness in this case. She, in her testimony, has narrated the entire story in detail as to how she had hired TSR and then she was forcibly taken to First floor of the house. Later on it was found that the house belonged to accused Raj Kumar, who was living there as a tenant. PW-7 Smt. Urmilla testified to the fact that Raj Kumar was her tenant in that House bearing No. B-502, Gokul Puri, Delhi, for about seven-eight months prior to the incident, in the year 2005.