VIRENDER Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The appellants Virender @ Lalla @ Bhura (A-1) and Kailash @ Satyawan @ Sultan @ Kala (A-2) challenge judgment dated 13.12.2010 in Sessions Case No.109/2009 arising out of FIR No.729/2005 registered at Police Station Rohini by which they were convicted for committing offences punishable under Section 376 (2) (g) IPC. By an order dated 04.01.2011, they were sentenced to undergo RI for ten years with fine of Rs. 5,000/- each.

(2.) On 24.07.2005 at about 04.00 or 04.15 A.M. ASI Jaipal Singh, Head Constable Jagdish Prasad and Constable Raj Rao were on duty in PCR van at Madhuban Chowk, Rohini. An informer told them about hearing cries of a woman from a park towards Deepali Chowk. Immediately, they went to the spot and found a man committing rape upon a lady while the other wearing kurta-pyjama had caught hold of her hands. Constable Raj Rao apprehended him when he attempted to escape. The person who was performing sex with the lady was apprehended by ASI Jaipal Singh. Daily Diary (DD) No.9A was recorded at Police Station, Rohini. SI Harjinder Rana went to the spot and took custody of the appellants. She recorded ASI Jaipal Singh's statement and lodged First Information Report. Prosecutrix 'G' (assumed name) and both the appellants were taken to Sh.Baba Sahib Ambedkar Hospital (in short 'BSA) for medical examination. Statements of the witnesses conversant with the facts were recorded. The exhibits were sent to Forensic Science Laboratory. Pursuant to the appellant's disclosure statements their involvement in case FIR No.338/2005 under Section 457/380 IPC at Police Station, Rohini surfaced and their correct names were ascertained Virender @ Lala and Kailash. The prosecutrix 'G' was admitted for treatment at IHBAS. After completion of investigation, a charge-sheet was filed against the appellants. They were duly charged and brought to trial. The prosecution examined 15 witnesses to substantiate the charges. In their 313 statements, the appellants pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment held both the appellants perpetrators of the crime and sentenced them.

(3.) Learned counsel for the appellants urged that there was no legal evidence against the appellants to base conviction. The Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimonies of police witnesses with whom the appellants had an altercation on demand of bribe. Statement of the prosecutrix was not recorded during investigation. In her crossexamination, she categorically admitted that she was tutored by the Investigating Officer. Presence of ASI Jaipal Singh, Head Constable Jagdish Prasad and Constable Raj Rao at the spot is highly doubtful. No log book/register maintained in the vehicle was produced. The informer was not cited as a witness. The prosecution witnesses were unable to disclose the name of the informer and the vehicle in which he was travelling. The MLC and FSL reports do not establish appellants' involvement in the incident. Vital contradictions and inconsistencies have emerged in the testimonies of PCR officials as to where they were stationed; at what distance the spot of occurrence was and at which specific place the prosecutrix was found. There were residential houses nearby, but no independent public witness was associated. It is highly unbelievable that none of the residents would hear cries of the lady from the nearby park. Test Identification Proceedings were not conducted. Learned Additional Public Prosecutor urged that the prosecutrix's statement has been corroborated by PCR officials and there are no good reasons to discard their statements.