- (1.) VINOD Prasad, J. All these three appeals arises out of the same Special Sessions Trial No. 1 of 2006, State v. Sachin and Ors. , under Section 376/506/120-B IPC and Section 3 (2) (V) SC/st Act, P. S. New Agra, District Agra decided by Additional Sessions Judge (Court No. 2) Mathura and hence all these three appeals were directed to be clubbed together and were admitted by this Court and it was directed that the lower Court record be summoned for consideration of bail prayer of all the three appellants, which is now being considered by this common order.
(2.) THE prosecution allegations against the appellants in all the appeals in brief are that on 11-8-2004 the three appellants Sakir alias Saket, Sachin and Arun alongwith one other co- accused Yogendra committed gang rape on Km. Naina Singh d/o Ashok Kumar on 11-8-2004 and 12-8-2004 in the vicinity of Dayal Bagh area Agra. Because of gang rape victim Km. Naina Singh had become unconscious and was thrown on the road infront of Anjuman Bar Agra from where Sub-Inspector Hari Kesh Rai picked her up in an unconscious condition on 12-8-2004 at 10. 30 p. m. and got her hospitalized. Regarding these happenings a G. D. entry was made at the police station. On 14-8-2004 when the victim Km. Naina Singh regained consciousness, she got the F. I. R. scribed through her elder sister Km. Sandhya and got it lodged at Police Station New Agra. Ensued investigation culminated in charge-sheet against the appellants in Court and Special Sessions Trial No. 1/06 started against the appellants. In the trial prosecution examined Head Constable Satya Veer Singh P. W. 1, Dr. Neelam Sahgal P. W. 2, Manoj Sharma P. W. 3, Km. Sandhya P. W. 4 (scriber of her F. I. R.) and Km. Naina Singh P. W. 5 (Victim ). Additional Sessions Judge Court No. 2 Mathura finding the case of the prosecution proved to the hilt convicted the appellants Sakir @ Saket, Sachin and Arun under Section 376 (2) (g) IPC and sentenced each of them to undergo 10 years R. I. with a fine of Rs. 5,000/ -. All the above appellants were also convicted and sentenced under Section 120-B IPC for 10 years R. I. with fine of Rs. 5,000/- each and in default of payment of fine to undergo further imprisonment for one year. It was also directed that the period of imprisonment already spent by the appellants in jail shall be reckoned as period of sentence served by him. On the aforesaid facts I have heard Sri J. S. Sengar learned Counsel for the appellants in all the appeals on the bail prayer of all the appellants and learned AGA in opposition.
(3.) SRI J. S. Sengar at the very out set of his submission contended that no doubt in this case act of commission of rape on the victim Km. Naina Singh is established but he contended that from the medical evidence as well from testimony of the victim it seems very doubtful that the present three appellants were involved in the crime. SRI Sengar pointed out that no complaint was made by the victim either to her father or to her sister on the very first day (11-8-2004) regarding the rape incident. He further contended that according to the statement of P. W. 2 Dr. Neelam Sahgal the injuries which were sustained by the victim during the carnal intercourse shows that they were fresh in nature and consequently, SRI Sengar contended, that no rape was committed on the victim on 11-8-2004. SRI Sengar further contended that unknown persons ravished the modesty of the victim on 12-8-2004 and the appellants have been falsely implicated in this case. Learned Counsel further submitted that in the statement of the victim there are glaring omissions which amount to contradictions regarding all important aspects of the allegations either in the F. I. R. or his 161 Cr. P. C. statement and therefore, the victim is not a wholly reliable witness. He, for the said submission, invited the attention of the Court on the last pages of victim's deposition from page 23 and onwards. He submitted that the statement of the victim is not at all reliable and has to be doubted as unreal and cooked up and hence should be rejected. He further contended that since the appellants were acquitted of the charges under Section 3 (2) (V) SC/st Act and 506 IPC, therefore, the prosecution allegation is not wholly correct and should not be believed. SRI J. S. Sengar submitted that during the pendency of the appeal appellant should be released on bail as they were on bail during the trial and they had not misused the liberty granted to them earlier and because their appeals are not likely to be heard in near future. Learned AGA on the other hand submitted that it is a case of gang rape and what ever has been argued by the learned Counsel for the appellants does not even slightly dent the statement of the victim. Learned AGA further contended that there was no reason for the victim to falsely implicate the appellants. He further submitted that in this case medical evidence established that the victim was raped and victim's evidence clearly indicates that because of the gang rape she had become unconscious and regained it after two days. AGA further contended that since the victim regained consciousness after two days that she got the F. I. R. scribed through her sister and got it lodged at police station concerned. He, therefore, contended that there was no chance of any embellishment and cooking of the F. I. R. He further contended that the F. I. R. version is fully supported by victim's evidence and therefore, she is a truthful witness. He further contended that on the facts of the case, there is no delay in lodging the F. I. R. He also submitted that victim did not disclose the incident to her father and sister on the first day because her father was a heart patient and Km. Naina Singh the prosecutrix apprehended that her father may not be able to bear the burnt of such an ignominious disclosure by her. The AGA in the end contended that the prayer for bail on behalf of all the three appellants is meritless and it should be rejected as the appellants do not deserve to be released on bail.;