Jai Bhagwan vs State (Govt. Of N.C.T. Delhi)

2. Case of prosecution is that the accused/respondents who were living in the neighbourhood of the prosecutrix (PW-1) at Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her jhuggi at about 09.00 PM on 28.07.1997 and demanded a bidi from her. She refused to give them any bidi. Thereafter, they demanded water which she again refused. The prosecutrix has alleged that thereafter respondents/accused switched off the electricity and accused/respondent No.2 Gunjesh Chaudhary caught hold of her hands and the other three accused had torn her clothes and committed rape on her in turn. The prosecutrix has alleged that she raised an alarm and fell unconscious thereafter. On hearing the alarm, Bashira Khatoon, mother of the prosecutrix (PW-3) came there and saw the four accused/respondents coming out of the jhuggi. Bashira Khatoon (PW-3) found the prosecutrix lying unconscious inside the jhuggi. Police Control Room (PCR) van took the prosecutrix to All India Institute of Medical Sciences (AIIMS) hospital. At about 11.45 PM, the prosecutrix was medically examined by Dr. Monika and it was noted in MLC (Ex.-PW6/A) that there were "bruises of 4 x 4 cm on medial aspects of both thighs of the prosecutrix". The blouse of the prosecutrix was found torn in the back side along the left sleeve.

3. At about 09.30 PM, information was received in the Police Station, Hauz Khaz PCR/South District regarding some quarrel at Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with Constable Khushi Ram (PW-4) reached the spot and learnt that the prosecutrix was taken to the hospital by a PCR Van. SI Jai Bhagawan (PW-7) along with the constable went to the AIIMS and found PW-1 Phoola (Prosecutrix) there. Doctor declared PW-1 fit to make statement and SI Jai Bhagwan recorded her statement concerning allegations of rape by the accused/respondents. The statement of the prosecutrix was recorded at 02.30 AM on 29.07.1997 and ruqqa for registration of the case under Section 376 IPC was sent at 02.50 AM. A case under FIR No.559/97 under Section 376 IPC read with Section 34 IPC was registered at 03.15 AM on 29.07.1997.

5. Charges were framed against the accused/respondents under Section 376(2)(g) IPC to which they pleaded not guilty. To bring home the guilt of the accused, the prosecution examined seven witnesses and exhibited number of documents. The accused/respondents in their statement under Section 313 Cr.P.C. stated that PW-1-Prosecutrix was of bad character and she was indulging in prostitution and they have lodged complaint against her and therefore, they have been falsely implicated in the rape case.

6. Upon consideration of evidence of PW-1-Prosecutrix and medical report, forensic report and other evidence, the trial court convicted accused/respondents under Section 376(2)(g) IPC and sentenced each of them to undergo rigorous imprisonment for ten years. Being aggrieved, the accused/respondents filed appeal before the High Court. In the High Court, the accused/respondents filed petition under Section 391 Cr.P.C. for taking additional evidence which was allowed by the High Court. The High Court by the impugned judgment allowed the appeal by setting aside the 4 conviction of the accused/respondents under Section 376(2)(g) IPC. The High Court held that regarding the ladies quarrel at 07.30 p.m. on 28.07.1997 involving sex workers including the prosecutrix at Shaheed Bhagat Singh Jhuggi, FIR No.558/97 was registered and in connection with the said FIR No.558/97, the prosecutrix and other ladies were arrested and that they were in custody with the police till at least 09.30 PM. The High Court therefore doubted the prosecution case in FIR No.559/97 and held that when the prosecutrix and other ladies were in custody with the police between 08.50 PM till 10.00 PM on 28.07.1997, it is quite impossible that the occurrence of rape would have taken place at 09.00 PM on 28.07.1997 as alleged by the prosecutrix.

7. Based upon the Report of Joint Commissioner (Ex.-DW6/A) and the Report of DCP, the High court directed the Registrar General of the High Court to make a complaint against SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-5) before the concerned court for prosecution for the offences under Sections 193 and 195 IPC. Being aggrieved by the remarks made against them and also the direction to lodge a complaint to initiate prosecution against them, SI Jai Bhagwan (PW- 5

26. The High Court reversed the verdict of conviction mainly on the ground of difference of timing in the registration of FIR No.558/97 and other aspects of investigation. At about 08.05 PM, a telephonic information was received vide DD No.67-B at Police Station Hauz Khas regarding a quarrel at Shaheed Bhagat Singh Jhuggi. The specific case of the defence is that the prosecutrix was in police custody in FIR No.558/97 under Section 160 IPC till about 10.00 PM. As per the deposition of SI Prem Chand (DW-3), he reached the spot with one lady constable Ms. Sarla Toppo and Constable Sagar Chandra (DW-5) at around 08:18 PM and found the ladies including prosecutrix quarrelling at public place in their jhuggis and immediately arrested the ladies and conducted investigation and sent the ruqqa with a constable to register the FIR under Section 160 IPC. On receipt of information, FIR No.558/97 at Police Station Hauz Khas was registered at 09.20 PM on 28.07.1997. SI Prem Chand (DW-3) stated about the arrest and search of four women and then released them on bail bonds and he was on the spot up to 08:50 PM.

30. The reasoning of the High Court that the ladies were arrested in connection with FIR No.558/97 under Section 160 IPC and that the ladies must have remained with the custody of police till 09.20 PM proceeds on presumptive footing and surmises. In his evidence, Mahanand Jha (DW-1) has stated that “the said ladies came back to the area at 08.30 PM and started abusing the neighbourers”. 19 Likewise, Sharabuddin (DW-2) has stated that “the police released the said ladies including Phoola (PW-1) and after coming back to her jhuggi, she started abusing the neighbours. Then, I informed PCR Van on telephone and PCR Van came and took Phoola……..”. The High Court failed to appreciate the testimonies of DWs 1 and 2 who have categorically stated that the prosecutrix had come back and was abusing neighbours. The evidence of DWs 1 and 2 clearly shows that the prosecutrix was let out by the police at or about 08.20 PM on 28.07.1997. Mere fact that FIR No.558/97 under Section 160 IPC was registered at 09.20 PM does not indicate that the prosecutrix and other quarrelling ladies were in the police custody till 09.30 PM on 28.07.1997 (with respect to the offence in FIR No.558/97).

bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

There are two preconditions for initiating proceedings under Section 340 Cr. P.C. :

44. For the conviction under Section 376(2)(g) IPC, the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be extended to imprisonment for life. After the amendment by Act 13 of 2013 (with retrospective effect from 03.02.2013), the minimum sentence of ten years was increased to twenty years as per Section 376-D and in the case of conviction, the court has no discretion but to impose the sentence of minimum twenty years. However, prior to amendment, proviso to Section 376(2) IPC provided a discretion to the court that “the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years.” Though the court is vested with the discretion, in the facts and circumstances of the case, we are not inclined to exercise our discretion in reducing the sentence of imprisonment of ten years imposed upon the respondents-accused.

45. In the result, the impugned judgment of the High Court is set aside and the appeal preferred by the State is allowed. The verdict of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) 30 under Section 376(2)(g) IPC and also the sentence of imprisonment of ten years imposed upon them is affirmed. The respondents- accused Nos.1 to 4 shall surrender themselves within a period of four weeks from today to serve the remaining sentence, failing which they shall be taken into custody. We place on record the valuable assistance rendered by the counsel Mr. Praveen Chaturvedi who has been nominated by the Supreme Court Legal Services Committee to argue on behalf of the respondents/accused.

46. The direction of the High Court to lodge complaint against the police officials (appellants in Criminal Appeal No.2298 of 2009) is set aside and the appeal preferred by them is allowed.

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