SUNIL SAXENA Vs. STATE

JUDGEMENT

(1.) Petitioner who Is facing prosecution in a case underSections 376/506/341 read with Section 34 of the Indian Penal Code in FIRNo. 80/91 registered at Police Station Chankaya Puri, has applied for bail.

(2.) I have heard arguments advanced by learned Counsel for the petitioner as well as the State. The case of the prosecution is based on the statement of the prosecutrix, Sheela Devi wife of Babu Lal. She had accompaniedone Sat Pal to Budha Jayanti Garden on 2.4.91. They were sitting under a treeafter taking some rounds in the garden. Satpal told her that his friend Onkaris working in the garden and he wanted to meet him. They got up and badhardly walked a few paces when the co-accused whose name was later on knownas Parblad Singh met them and said that be had over heard their talks. Heknew Oakar Siagh and he offered to take them to him. He took them towardsbushes inside the garden at a considerable distance near fensing wire. He askedthem to stay there so that he could go and call Onkar Singh. In the meanwhilefour persons including the petitioner arrived there. Three of them capturedSheela Devi while the 4th one alongwith Parhlad over-powered Satpal. Thethree persons forcibly took Sheela bebind the bushes at some distance and felledher to the ground. She tried to raise alarm and push them away. But theythreatened that if she raised alarm or tried to free herself they would kill her.With the threat they also gave a fist blow by the side of her chest. She wasthus terrorised. One of the co-accused Dalveer removed her SALWAR by forceand raped her. Thereafter the other co-accused Wazir Singh and Suresh Kumarforcibly committed inter-course with her. Meanwhile Dalveer went to Satpaland with the help of Suresh and Wazir Singh over-powered Satpal while theother two including the petitioner came and raped her. She then got up whileSatpal started raising alarm BACHAO BACHAO. 5-6 persons and two policeofficers arrived there who apprehended all the five accused including the petitioner at the spot.

(3.) Learned Counsel for the petitioner has argued that the statement ofthe prosecutrix implicating the petitioner was highly improbable. Her medicalexamination does not reveal any injuries upon her breasts, thighs or abdomenor any injury whatsoever on her body. According to the learned Counsel, theabsence of injuries on her person indicated the falsity of her statement. Hefurther argued that petitioner was returning from his office and being in thecrowd was trying to make enquiries about the incident when he was falselyimplicated. I am of the view that the absence of injuries on the person of theprosecutrix may be due to the fact that she was actually over-powered by anumber of persons while they forcibly committed inter-course with her turnby turn. The petitioner was also medically examined and a photo copy of bisMLC has also been produced on record. It appears that semen stains werefound on his underwear. Thus prima-facie it connects him with the offence ofrape. Learned Counsel for the petitioner also pointed out that in the FIR thetime of occurrence is given as 4.15 P.M. while in the statement under Section 164of the Code of Criminal Procedure, it is recorded as 2.30 P.M. In this respectit may be noted that even in the MLC, the prosecutrix has mentioned time ofoccurrence at about 2.30 P.M. Therefore, it appears that the time of occurrenceas 4.15 P.M. in the FIR has been recorded under some mis-apprebension. Inview of the fact that it is a case of the prosecutrix being gang raped by fivepersons, the absence of injuries on her person does not seem to have anysignificant effect. The petitioner and all others have been arrested at the spotand the presence of semen stains on the underwear of the petitioner at the time ofhis medical examination at 6.15 P.M., i.e., within a few hours of the occurrenceis a pointer prima-facie to his complicity in this heinous crime. Petition hasno merit and the same is hereby dismissed. Any observations made above willnot be taken as an opinion on the merits of the case.