JUDGMENT

Suresh Kumar Kait, J. - The present appeal under Section 378 Cr.P.C. has been filed by the appellant-State against impugned order dated 14.01.2011 passed by the learned Court of Sessions, whereby the respondents-accused have been acquitted of the offences under Sections 395/376G/412 IPC in FIR No.97/2005, registered at Police Station Bawana, Delhi.

2. The case of the prosecution is that on 19.03.2005 at about 12:45 a.m. at Sankat Mochan Siddh Hanuman Mandir, Barwala Road, the respondents alongwith other co-accused, committed gang rape upon the prosecutrix/victim and also committed dacaoity at the point of deadly weapons. In respect of the alleged incident, DD No. 5A was recorded at Police Station Bawana, Delhi by Inspector Babu Lal, who alongwith Head Constable Dharam Pal and Operator Shankar went to the spot of the crime, where they came to know that the wife of Pandit was already taken to MB Hospital by the PCR.

3. After recording statement of one Ram Prasad Adhikari, who was present at the spot, Inspector Babu Lal prepared the rukka which culminated into registration of the FIR in question.

4. Ram Prasad Adhikari, in his statement, before the police stated that he has been residing in Sankat Mochan Hanuman Mandir, Begumpur since 2003 alongwith his children. In 2004, he also brought his wife i.e. the prosecutrix, who had given birth to a daughter two months ago. On the day of the incident, while he alongwith his wife and both his children were sleeping in the room of mandir which was locked from outside, however, at midnight 5-6 persons entered into the mandir and pulled up his `choti' while he was sleeping and then awakened him. The persons were carrying pistols and guns and they threatened him by saying that if he would shout or made any noise they will fire a shot. The robbers asked him about the galla containing Rs.50,000/- and thereafter, they broke the lock of the mandir gate with the help of an iron saria, tied his hands and legs, took the keys of the room and went where his wife was sleeping.

5. As those four five persons entered the room where his wife was sleeping, upon hearing the noises, his wife and children got up and started crying. Those persons remained in the room for a considerable time, and after sometime, they came out and untied him and thereafter, they locked him alongwith his wife and children inside the said room and flee from the spot.

6. Ram Prasad Adhikari further stated that upon asking his wife, she disclosed that four persons on the point of pistols and guns removed her clothes and one by one committed rape upon her. They also forcibly removed her ear rings, gold nose pin and silver pajebs. Apart from this, they also took away three sarees and one dhoti kurta. According to the prosecutrix/victim, the age of the accused persons was about 30 to 40 years and they were all wearing turbans. Till morning, Ram Prasad Adhikari, alongwith his wife and children, remained locked in the said room. However, in the morning they shouted and then one bicycle rider stopped and opened the door of this room. Thereafter, he disclosed the whole incident to the nephew of the owner of the mandir, who called the police.

7. During the investigation, site plan of the crime spot was prepared, one broken lock, one button of shirt and woollen shawl of the prosecutrix were taken into possession and sent for FSL. The prosecutrix was sent for medical examination and her statement and that of other witnesses was also recorded. Besides, a plastic sheet on the takhat, a quilt cover was also seized and sent for FSL opinion. The investigation of the case was thereafter handed over to Inspector Gurmeet Singh.

8. On 14.04.2005, accused Sunil Kumar was arrested in another case being FIR No. 135/2005 under Section 25 of the Arms Act, 1959 registered at Police Station Alipur, Delhi and accused Virender @ Billu was arrested for the same offences in FIR No. 136/2005. Both the accused persons in their respective disclosure statements, ac