STATE Vs. BRIJ MOHAN @ BIRJU AND OTHERS

JUDGEMENT

(1.) Crl. M.A. 12328 of 2017 For the reasons stated therein, the application is allowed. Delay of 54 days in filing the present leave to appeal is condoned. Crl. L.P. 434 of 2017 The present leave to appeal has been filed by the State under section 378 of the Code of Criminal Procedure, 1973 ('Cr.PC') against the judgment dated 06.01.2017 by the Court of Additional Sessions Judge/Spl. Fast Track Court, Patiala House Court, New Delhi in SC No.9154/2016 titled State v. Brij Mohan @ Birju under Sections 376D/376E/392/394/34 Indian Penal Code, 1860 ('IPC'), whereby accused/respondent Tarun @ Golu, Shri Krishan and Brij Mohan were acquitted of all the charges framed against them.

(2.) The case of the prosecution, as noticed by the Trial Court is that, prosecutrix assumed name 'B' (identity of the prosecutrix is withheld with a view to conceal her identity) with her husband Vicky had proceeded to the RML Hospital from their house on 06.05.2014 for the purposes of examination of Vicky in the hospital. However, Vicky took liquor on the way and got drunk thereafter, instead of going to the hospital, they returned to their house on foot. On the way back to their house, at about 9 pm the prosecutrix 'B' had gone to ease herself through the portion of broken wall towards the bushes, that was when all the three respondents herein came and caught hold of the prosecutrix 'B', thereafter Vicky came there for her rescue after hearing her scream. However, all the respondents caught hold of both of them started beating them and then took them inside the jungle. One of the respondents, who was aged about 45/50 years, committed rape upon the prosecutrix, while the other two respondents caught hold of Vicky, thereafter the second respondent committed rape upon the prosecutrix while the third respondent caught hold of Vicky, then the first respondent robbed both of them and snatched Rs. 1500/- and mobile phone of the prosecutrix and Rs. 500/- from Vicky and they threatened the proseuctrix and Vicky and asked them to leave quietly. They came outside the jungle and stopped the police for help and reported the matter to the police, the police immediately went inside the jungle, but none of the respondents were present there. Thereafter, the proseuctrix and Vicky were brought to the hospital and the proseuctrix was medically examined.

(3.) The prosecutrix pointed out the place of incident and the statement of the proseuctrix was recorded, wherein she stated that she could identify the respondents. Based on these allegations, the FIR No.122/2014 was registered against the accused/respondents under section 376/376E/392/394/34 of IPC. Thereafter, investigation was conducted, during the investigation IO seized the exhibits/Gynae Test Kit, thereafter called the Crime Team at the place of incident and got the place of occurrence photographed, rough site plan was prepared at the instance of the prosecutrix. Further at the instance of the prosecutrix and Vicky, respondents Brij Mohan @ Birju and Tarun @ Golu were arrested on the next morning i.e. 07.05.2014. Their disclosure statements were recorded, in his disclosure statement, respondent Brij Mohan admitted that he had committed rape along with the respondent Shri Krishan @ Chacha, while respondent Tarun had caught hold of Vicky. On 08.05.2014, the respondent Shri Krishan @ Kishan @ Chacha was arrested based on the secret information received at Nehru Chowk Red Light, he disclosed that he had committed rape upon the prsoecutrix, while he was carrying a Danda and snatched the mobile phone of the prosecutrix as well as cash from the prosecutrix and Vicky, he also disclosed that, he had sold the mobile phone to the passerby and had spent the money. The Danda was recovered and seized from Mandir Lane at his instance.