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Delhi District Court

For Accused Also Relied Upon ... vs . State Of on 1 October, 2010

     IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
      ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.

      SC NO. 160/1/09

      State

      Versus

1-    Anil S/o Late Om Prakash
2-    Ajay S/o Late Om Prakash
3-    Amit S/o Late Om Prakash
      All R/o B-1359, Shastri Nagar,
      Delhi.
            (i)Case arising out of        FIR No.413/2004
                                          U/S: 376/34 IPC
                                          P.S. Sarai Rohilla
            (ii) Date of FIR              09/08/04
            (iii) Date of Institution     17.02.06
            (iv) Date of Final Arguments 28.09.10
            (v) Judgment reserved on      28.09.10
            (iv) Date of judgment         01/10/10
JUDGMENT

Briefly stated the facts as per the prosecution story are that on 8.8.2004 between 9 pm to 5 am in a room situated at ground floor of H.No. B-1359, Shastri Nagar, Delhi within the jurisdiction of P.S. Sarai Rohilla, all the above named accused persons committed rape/sexual intercourse with or upon prosecutrix Geeta forcibly against her will one by one in furtherance of their common intention.

It is further alleged that on the intervening night of 8th and 9th, August, 2004 complainant Geeta appeared in PS and reported the rape S.C. No. 160/1/09 Page1/36 incident happened with her on the intervening night of 8th and 9th, August, 2004. On the basis of said complaint, her statement was recorded by SI O.P. Lekhpal vide Ex. PW4/A and endorsement made thereupon vide Ex. PW16/A. Rukka was prepared and FIR No. 413/04 u/s 376/34 IPC was registered. The prosecutrix got medically examined in Hindu Rao Hospital. Thereafter the complainant along with IO SI O.P. Lekhpal and police officers reached at the place of incident. Site plan Ex. PW16/A at the instance of complainant was prepared. The accused persons could not be found . Thereafter, on 8.9.2004 accused Ajay was arrested vide arrest memo Ex. PW11/A and his personal search was conducted vide memo Ex. PW11/B. On 4.11.2004 accused Anil and Amit were arrested. Disclosure statement of accused persons were recorded. Two sealed pullanda along with sample seal of the Hindu Rao Hospital given to IO which was seized by IO vide seizure memo Ex. PW16/D. Accused persons also got medically examined . Blood samples of accused persons were also taken and seized vide memo Ex. PW12/A and PW14/A. MLCs of the accused persons were collected. The pullands were deposited in the Malkhana. Statement of witnesses were recorded. On 20.12.2004 pullandas of this case were sent to CFSL Kolkatta and result was obtained vide Ex. PW17/A and Ex. PW17/B. After completion of investigation challan was put before the court.

After completion of committal proceeding a prima facie case against the accused persons made out, as such charge for offence u/s 376(2)(g) IPC was framed upon them, to which they pleaded not guilty and contested the case.

The prosecution in order to prove the charge against the accused S.C. No. 160/1/09 Page2/36 persons examined PW4 Smt. Geeta victim/prosecutrix, who stated in her statement that on 25.3.2004 Ms. Asha Rani who is the sister of all the three accused persons lodged a case of rape against one Vikas husband of prosecutrix Geeta at P.S. DLF, Gurgaon, Haryana. Her husband Vikas Shivram was working as RTO, Sheikh Sarai, Transport Authority, Delhi. The sister Ms. Asha Rani of all the three accused made allegation against her husband that he had committed rape on 25.3.2004 at about 5.00 pm back side of office room at his office at 16/13, DLF, Phase-III, Belwert Tower, Gurgaon. The prosecutrix PW4 Geeta had given a sum of Rs. 1.70 lacs to her husband in that complaint made at Gurgaon. Infect her husband wanted their flat No. BB-74C West Shalimar Bagh to sell the same through Himgiri Property Dealer to accused Anil and his mot her Rampyari. At that time Anil gave a sum of Rs. One lakhs as Earnest Money/Byana to her husband through Himgiri Property Dealer for purchasing her above said flat on 2.10.2003 and remaining amount was to be paid within 45 days and that period expires on 16.11.2003. The remaining balance sale consideration amount was not paid by Anil to her husband so, the earnest money /Bayana amount was forfeited.

It is further stated by prosecutrix/PW4 Geeta that on 8.8.2004 at about 7 pm accused Ajay came to her residence at Munirka and asked her to give Rupees four lakhs to withdraw the rape case which was lodged by their sister against her husband. She told him that she have no such a huge amount to which accused Ajay told her that she should meet his mother in this respect at his residence at B-1359, Shastri Nagar, Delhi. The accused Ajay left her house. Thereafter on the same date, she went to his house and reached over there at about 9 pm. At the residence of S.C. No. 160/1/09 Page3/36 accused persons their mother Smt. Rampyari offered her a cup of tea and she asked her whether she have brought the above said money or not and then PW4 Geeta told to Rampyari that she has brought only Rupees Thirty Thousand and handed over Rupees thirty thousand to Ram Pyari. Smt. Rampyari took the said amount and told her that the remaining amount would be payable when her husband would come out from the jail. Geeta consumed the tea. After receiving Rupees thirty thousand Smt. Rampyari told her that her son Ajay Kumar is a bed character of the area and if she will not pay total Rs. Four Lakhs to them , her son Ajay will force her to do prostitution " Dhanda Karaye ga". Smt. Rampyari also uttered her that Ombir owner of Himgiri Property is also getting the prostitution done from girls (Asha) and he will also force her into prostitution to recover the balance sale consideration amount to which she tried her best to run from there but she was prevented by putting her in a room by Rampyari along with all the three accused persons as they were also present at that time with their mother. Thereafter, for a while accused Anil entered in the said room. He gave beatings to her with slaps, fists, and he tried to commit " galat kaam" with her , she tried to save herself from him but he hold her hands. He torned her wearing clothes i.e. shirt and salwar. He started forcibly/jabardasti to commit rape upon her. He put of her all the clothes from her body and she became naked and then he put her on Diwan/bed lying in the said room and accused Anil committed sexual intercourse forcibly with her and he went away. During t he commission of rape she raised alarm and tried to save herself but he did not open the room. Thereafter accused Ajay entered in the room and he has also forcibly committed rape upon her and at that time he was S.C. No. 160/1/09 Page4/36 uttering that he was taken the revenge of his sister. Thereafter accused Amit entered in the said room and he had also committed forcibly rape upon her . Due to their act, her condition became deteriorated and she felt giddiness. In the midnight around 12 O'clock she tried herself to run from there but at that time Smt. Ram Pyari was standing between the door of that room and main gate of the house in the varanda.

PW4 Geeta further testified that accused Ajay came from her behind and he pressed her neck and he dragged her again in the said room and he again started beating her and at that time he was uttering her that "

Hamari Marji key Bagair tu is kamaerey sey ja bhi nahi sakti" . Accused Ajay abused her in filthiest language and he again put of her wearing cloth from her person/body and he throw her on a takht lying in the said room and tried to torn her apparels with some sharp object and he also scratched on her body with the same object to which she sustained the scratch injuries on her thighs, hands, chest and abdomen and he also uttered her that she show the injury to her husband and told him that they have taken the revenge of committing rape upon their sister Asha. Due to act of the accused persons, her body become senseless and she also felt giddiness and then she become unconscious and she remained lying in the said room up to morning and then at about 4/5 am in the morning, she regained consciousness then she put on her cloths and the door of the said room was not locked at that time and none of the accused persons was present there at that time. The main door of the house was bolted from inside. So after unbolting the same she came out from the said house and after asking the way and address of nearby PS from passersby, she came to the PS Sarai Rohilla. Her statement was recorded vide Ex. PW4/A. S.C. No. 160/1/09 Page5/36 Thereafter she was taken to the Hindu Rao Hospital where she got medically examined and here wearing cloths i.e. Kameej, Salwar, bra and panties were taken into custody by the doctor. She remained in the hospital up to 3-4 pm and thereafter she was discharged and then she accompanied to the police PS Sarai Rohilla, from there she took the police party to the place of incident i.e. the house of the accused and pointed out the house as well as the said room and said takht where the rape was committed by the accused persons on her and IO prepared the site plan of the same.

PW4 Geeta further testified that on 20.9.2004, she again joined the investigation and went to the office of the accused Anil i.e. NDPL and from where at her instance the accused Anil was arrested vide memo Ex. PW9/A and his personal search was conducted vide memo ex. PW9/B. She further stated that after consuming the tea offered by the mother of the accused persons she was locked in the room and after a while all the three accused along with their mother entered in the said room after wearing condoms, committed sexual intercourse forcibly upon her. She identified her clothes Ex. P-1 to P-4.

In cross examination on behalf of the accused persons she admitted that sister of all the three accused persons made a case of rape against her husband and her husband has already been convicted in that day and now her husband is in jail. In the rape case, the sister of accused persons Asha Rani's statement was recorded at Gurgaon Distt. Court on 19.2.2005. She have three children, two female aged about 18 and 16 years and one male child aged about 5 years and except her three children no one was residing with her, in her flat of Munirka Village. The said S.C. No. 160/1/09 Page6/36 flat was owned by her husband. She is having no servant in her said flat nor she kept any servant for part time. She is GIC Agent and doing this job since last about 5-6 years. Sometime her husband used to provide help in the said job. She do not have any own office for GIC Agent but headquarter of GIC is situated in Laxman House Asaf Ali Road, Daryaganj, Delhi. She had a car make Maruti Zen and its no. is DL2CJ- 6215. She have no single client in Gurgaon City. She saw Asha the sister of all the three accused on 13.10.2004 when she appeared in District Court Gurgaon for recording her statement. But she did not know her. She met first time with accused Anil, his mother Smt. Rampyari and his sister on 2.10.2003 when they gave her the earnest money/bayana of her flat situated in Shalimar Bagh and said LIG flat is in her name. They paid her Rs. One lac as earnest money of purchasing the said flat and a written agreement was executed between her and them. The receipt of Rs. One lac was got typed by the property dealer Ombir and same was signed by her but she have no photocopy of any document including agreement. It is denied that no dealing has ever executed between her and the accused family nor the accused have paid her a sum of Rs. One lack as earnest money. It is denied that she is running her interior decorator office in DLF Colony, Gurgaon and Asha sister of the accused persons was working with her. She used to change her mobile as received threat from Ombir and Ajay and she made a complaint in this respect in P.S. Sarai Rohilla. It is denied that her husband was also doing the property business with Rajender Jain. It is also denied that she used to talk on mobile to Rajender Jain and Mobin on several times and she offered them a sum of Rs. 7 lacs just to get Asha hostile in the rape case S.C. No. 160/1/09 Page7/36 against her husband at Gurgaon Court. She admitted that it is in the knowledge of Veena Jain and Janinder Jain, about her huabsnd case as well as this present case. She also used to visit the jail to meet her husband once or twice in a week. After registration of rape case by Asha against her husband. She have never tried to meet the accused persons but the accused Ajay used to met her in Gurgaon court and asked for arrangement of Rs. 4 lacs and sometime Ombir used to be with him. She never made complaint to the court of Gurgaon. Her friend Veena Jain and her husband Janinder Jain are not known the Asha and accused persons. Ajay came to her house on the day of incident at about 7 pm. She talked to her for about 4-5 minutes from inside her house after opening the wooden gate but the iron gate with jali was closed at that time her children were present inside the house. She did not disclose regarding demanding of Rs. 4 lacs on 8.8.04 by accused Ajay from her to anyone. She engaged the TSR from both ways for a fare of Rs. 250/-. she came to Sarai Rohilla from her house by Liberty road and then Shastri Nagar Metro Railway Station. There are three shops in the house of accused persons bu t at that time those were closed. When she was reached at the house of the accused persons, accused Anil was standing outside the house, who took her inside the house and offered to sit in a drawing room and sat there. When she was sitting in the drawing room at that time Anil left from there and Smt. Ram Pyari entered in the drawing room and thereafter accused Ajay and Amit have also come in the drawing room. Four accused persons were seen by her in the house. There is one window in the drawing room which opens towards inside the house. The mother of accused persons was sitting with her on a Diwan and accused S.C. No. 160/1/09 Page8/36 persons were sitting on chairs and on the cot. First Ajay left the drawing room for preparing tea and then he called h is mother Ram Pyari. She (PW4 Geeta) used to keep a sum of Rs. 4000/- to 5000/- in the house, for daily need expenses.

It is further stated by PW4 Geeta that she came to know even on the night on 8.8.2004 that the Ajay is a bad character, as the same has been disclosed by accused Ajay himself. No conversation took place during taking tea between her and accused persons. She left the house of the accused persons early in the morning at 5 am on 9.8.04 and reached the PS from the house of accused persons within 20 minutes on foot. Due to the incident she become so perplexed so she cannot say whether any shop of STD was opened or not at that time or that Shastri Nagar Metro Station falls in the way or not. She asked from people that which P.S. falls nearby. Police interrogated her and thereafter lady Ct. came over there and recorded her statement about the incident. After recording her statement, all the three accused were brought to PS along with their mother. She was taken to the hospital for medical examination at about 12 noon by the woman ASI Khushwant Kaur in police geypsy. She did not accompany the police anywhere else except one place from where the accused Anil was arrested. Her husband wanted their flat No. BB-74C west Shalimar Bagh, to sell the same through Himgiri Property dealer to accused Anil and his mother Ram Pyari. Anil gave a sum of Rs. 1 lac as earnest money/byana through her husband to Himgiri Property dealer for purchasing her above said flat on 2.10.2003 and remaining amount was to be paid within 45 days and that period expired on 16.11.2003 and the remaining balance sale consideration amount was not paid by Anil to her S.C. No. 160/1/09 Page9/36 husband so the earnest money/bayana was forfeited. She took said amount and the remaining amount would be paid when her husband would come out from the jail and if she will not pay total Rs. 4 lac to them or her son Ajay forced her to do prostitution. She was closed by pushing her in a room by Ram Pyari along with all the three accused persons were also present at that time. She tried to run away but at the time Ram Pyari was standing between the door of the room and main gate of the house. Accused Anil gave her beating with slaps, fist and then he torn her wearing cloths i.e. shirt and slawar and then he put off her all cloths from her body. During the commission of rape she raised alarm and tried to save herself but he did not open the room and that time he uttering that he has taken the revenge of his sister. Accused Ajay was also uttering t hat " Hamari marji key bager tuin is kamery say bahar ja bhi nahi sakti". Accused Ajay abused her in filthy language and also put of her wearing cloths again on her person and dragged her on the takht lying in the said room and tried to torn her cloths with some sharp object and he also scratched on her body with the same object to which she sustained the scratch injuries on her thigh, hands, chest and abdomen. All the accused stated that they have showed the injured to her husband, they have committed the revenge of their sister and due to act of the accused persons she felt giddiness and become unconscious and remained lying in the said room up to morning. She regained consciousness when she put on her cloths and the door of the said room was not locked at that time and none of accused was present there at that time and the main door of the house was bolted from inside and after unbolting the same, she came out from the said house and asking the way and address of nearby PS S.C. No. 160/1/09 Page10/36 from passersby and came to P.S Sarai Rohilla.

She further stated that after consuming tea, offered by the accused persons she was pushed in room and thereafter all the accused persons along with their mother entered in the said room. The incident took place with her in the adjoining room of the house of accused persons and that room is situated entirely deep in the house, there was no window or ventilator. She raised hue and cry when accused persons committed rape upon her in the room. She tried her best efforts to save from the accused persons. No superficial injury was received when the accused persons dragged her in the room and kept her on Dewan/Takhat where accused persons committed rape upon her.

Apart from the prosecutrix PW4 Geeta, prosecution has also examined PW1 Dr. G.B. S. Kohli who examined the prosecutrix on 9.8.04 at 12.30 pm with alleged history of sexual assault and proved the MLC Ex. PW1/A and after preparing the MLC the patient was referred to Gynecological department and medical legal opinion.

PW2 Dr. C.B. Dabas has also examined the prosecutrix Geeta who was referred to him by causality medical officer through MLC Ex. PW1/A. On examination he found seven multiple leniel scratch, abrasion over various parts of the body of various length as detailed in h is report Ex. PW1/A encircled at point B. He opined that the scratch abrasion can be caused by thin sharp edged object and possibility of self infliction cannot be ruled out. PW2 has also identified the signatures of Dr. Subha Jyoti Dekka as she has left the hospital and examined the patient Ajay Kumar by giving opinion that there is nothing to suggest that this person is not capable to perform sexual intercourse vide MLC Ex. PW2/A. PW2 S.C. No. 160/1/09 Page11/36 Dr. C.B. Dabas has also identified the signatures of Dr. Sunil Kumar Rai who filled the form for examination of medico legal case for patient Amit aged about 24 years vide Ex. PW2/B. PW3 Dr. Om Parkash Parsad has examined Patient Anil Kumar with alleged history of sexual assault and proved the MLC vide Ex. PW3/A and referred to EMO surgery and medico legal expert for needful.

PW6 Dr. D.P. Ray has examined Ajay Kumar on 8.9.04 with the alleged history of committed sexual assault vide Ex. PW6/A and later on referred to EMO Surgery, EMO medicine and medical legal expert for necessary examination and opinion.

PW9 Dr. M.K. Paniogrey, has examined Anil Kumar on 21.9.04 brought and identified by ASI Khushwant Kaur with the alleged history of sexual assault over the victim and opined that there is nothing to suggest that the person examined is not capable of performing sexual intercourse vide MLC Ex. PW3/A encircled red on Ex. PW10/A. PW15 Dr. Preeti Morya, Sr. Gynecologist , identified handwriting of Dr. Shaifali Tyagi who examined the patient Amit vide MLC Ex. PW15/A and Dr. Shaifali after examination referred the patient to EMO Surgery and medico legal expert for opinion.

PW17 M.K. Majumdar, Sr. Scientific Asstt. CFSL Kolkatta examined the parcel sealed with seal of HRH and were received in CFSL with the letter of SHO Sarai Rohilla dated 11.12.04. The parcels were marked Ex. 1A,B,C,D and 2,3,4,5,6,7 , contents were taken out. He examined and conducted the test for presence of blood and semen by using phenolphthalein, Takayama, visual and ultraviolet examination, Acid phosphate test and microscopies examiantion. The report of the S.C. No. 160/1/09 Page12/36 biology division is Ex. PW17/A. He also prepared the report of serology examination vide Ex. PW17/B. The remnants of exhibits w ere again sealed with the seal of CFSL, Kolkatta and was forwarded to DCP North.

Apart from the expert witnesses, prosecution also examined police official who have participated in the investigation and prove the documents by identifying their signatures during the course of investigation, these are PW4 ASI Jai Pal Singh , who being the Duty Officer on 9.8.2004 registered the FIR in the present case vide Ex.PW5/A and handed over the copy of FIR and original rukka to SI O.P. Lekhwal.

PW7 HC Satyawan is the MHC(M) who received three pullanda from SI O.P. Lekhwal and deposited in the Malkhana against entry No. 2344 and also sent the said pullandas on 11.12.2004 to CFSL Kolkatta vide R/C No. 229/21 through Ct. Karambir and result of exhibits were received through Ct. Kuldeep and same were handed over to ASI Kushwant Kaur. Entry were made to this effect in the register No. 19 same are Ex. PW7/A to PW7/E. PW8 ASI Bhagwan Dass is the police official of the crime team, went to the house No. 1359, Shastri Nagar, Sarai Rohilla, Delhi on 10.8.04 and found the same was locked as such could not inspected the site.

PW9 Ct. Virender Singh joined the investigation on 20.9.2004 along with ASI Khushwant Kaur apprehended accused Anil at the instance of prosecutrix Geeta vide arrest memo Ex. PW9/A and personal search memo ex. PW9/B. Accused Anil has also made disclosure statement Ex. PW9/C and thereafter he was medically examined.

PW11 Ct. Manoj Kumar also joined the investigation on 8.2.2004 S.C. No. 160/1/09 Page13/36 along with ASI Khushwant Kaur and SI O.P. Lekhwal where on the pointing out of secret informer, accused Ajay was arrested vide memo ex. PW11/A his personal search was con ducted vide memo Ex. PW11/B and his disclosure statement was recorded vide memo Ex. PW11/C. Thereafter accused Ajay was got medically examined, his blood sample, semen sample and undergarments were seized by the doctor and same were sealed in a pullanda with the seal of HRH and handed over the same to ASI Khushwant Kaur vide memo Ex. PW11/D. PW12 Ct. Dhiraj was the duty Ct. in HRH, hospital and in his presence the blood sample and sample seal were given to him by the doctor and same were handed over to ASI Khuswant Kaur and taken into possession vide memo Ex. PW12/A. PW13 Ct. Karambir has deposed about taking of seven pullandas to CFSL Kolkata on the direction of IO vide R/C No. 229/21 and deposited the acknowledgment to the MHC(M).

PW14 Ct. Narender also posted as Duty Ct. in HR Hospital on 8.9.04, he got medically examined accused Ajay and after medical examination the blood sample , semen sample and undergarments of accused Ajay which was sealed in the pullanda with the seal of HR Hospital and were handed over to the IO. PW14 has also deposed that that on 4.11.2004 accused Amit was also brought to the hospital by the Sarai Rohilla police station and he was also medically examined and his blood sample and sample seal were handed over through Ct. Narender to the Investigating Officer vide memo Ex. PW14/A. PW16 Insp. O.P. Lekhwal and PW18 ASI Khuswant Kaur are the IO, who have participated in the investigation recorded the statement of S.C. No. 160/1/09 Page14/36 witnesses and execution of various documents prepared during course of investigation and received the FSL report vide Ex. PW17/A and PW17/B. PW18 Ct. Rajinder also got conducted medical examination of accused Ajay and Anil in HR Hospital.

After conclusion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C and they had deposed in their statements all the incriminating evidence lead by prosecution are wrong and incorrect and submitted that prosecution witnesses are false. However, they have admitted their arrest and medical examination. The deposition made by the prosecution witnesses are interested one they are deposing falsely. It is a false case, on the statement of prosecutrix Geeta who wanted to extort pressure on their family to coerce their sister Asha to turn hostile in case FIR No. 130/04, registered u/s 376 IPC with PS DLF, Gurgaon against the husband of prosecutrix.

All the accused persons have also lead defence evidence and examined DW1 Ombir Gupta, who testified in his deposition that he being the property dealer proprietor of M/S Himgiri Property. In the first week of August 2004, Geeta along with one Jaininder Jain came to his shop with one of his close friend Raman, who is resident of Shalimar Bagh. On enquired about the reason for visit, Raman told that he has come as Geeta needs his help in some matter. On asking about the nature of help, Geeta told that her husband has been arrested pursuant to the statement of one Asha, resident of B block, house No. 1359 Shastri Nagar, on account of her rape and if she resiles from her statement, her husband can avail bail in the said case. She also brought a photocopy of purported affidavit for getting the same sign from Asha Rani. Looking at the gravity S.C. No. 160/1/09 Page15/36 of the allegations, he expressed his reluctance for extending any favour. Geeta again pleaded him for cooperating with her in turning Asha hostile. When he questioned Geeta that had she been the victim of rape would she have conceded to the request on which she became furious and extended threat that if the matter is not resolved amicably, she knows h ow to manage the things and further threatened him that since he is favouring Asha, she would implicate him along with other relatives of Asha in some frivolous case and left the shop. After t hat he search the said house where he met one Anil, who introduced himself to be the elder brother of Asha and narrated the entire incident. after that police officials came his shop and enquired about the matter and he told about the same and they recorded his version and told that if he will require he will summon. He had met Asha once in the first week of August 2004.

DW2 Smt. Lajjawati has deposed that on 8th August, 2004, there was a puja of Satyanarayn organised at her residence where the duration of the puja was from 5 pm to 7 pm and food was also organized for the guests. Amit , Anil and Ajay are living in the neighborhood. Their entire family had come to join them on the Kirtan. The entire family of Anil including the mother Rampyari and sister Asha were also there during the programme. They remained there till 10.30 pm in the evening. On the next day police officials came in the locality and she was enquired about the incident and she told that no such incident had taken place as the entire family of the accused persons was there with them in the evening of 8th August, 2004.

After conclusion of evidence of both parties. Having heard the submission at Bar and also carefully perused the material placed on record S.C. No. 160/1/09 Page16/36 as well as authority cited.

Ld. APP for State argued that the prosecution bring home the guilt of the accused persons within the ambit of charge framed against them. The deposition made by prosecution witnesses are trustworthy, believable and inspired confidence. The witnesses brought in defence by the accused persons are interested witnesses, both are neighbrour of the accused persons and there is no authenticity from their deposition having being deposed as per the instruction and instance of accused persons and they are not summoned witness. Both the witnesses have not made any written complaint to any police authority nor they came forward to receive their statement or join the investigation. Both the defence witnesses never appeared in police station to lodged complaint with the police at any occasion. DW1 Ombir Gupta stated that Geeta gave threats to him and he disclosed all the thing to the accused persons, but neither the accused persons nor the DW1 Ombir Gupta has not made any complaint of the said incident to any competent authority nor to the police. If the prosecutrix threatened him, he would have been mentioned in the complaint. Since no such event took place in presence at the shop of DW1 Ombir Gupta, as such no action taken and testimony of DW1 cannot inspire any confidence. DW2 Lajjawati has not produced any documentary evidence of any invitation card or photographs, videography of of Bhajan Kirtan or Pooja at her residence. She is residing at B-1247 and the accused persons are residing at B-1359 as such they are living in the same locality and there was sufficient distance between the house of DW2 Lajjawati, she cannot watch the affair in the family of the accused persons. The affair of accused persons cannot be S.C. No. 160/1/09 Page17/36 visible from the house of DW2 Lajjawati. Asha and her family member has not told regarding any incident or atrocity with her to the defence witnesses. She has not stated that Asha was raped by one Vinod vis a vis she has no where stated that accused persons wanted to take revenge for their sister or they are falsely implicated in this case. It is evident that accused persons were locked their house at the time of police arrived there and there is no explanation to this effect.

It is further contended that prosecutrix Smt. Geeta in her deposition made allegation against the accused persons that the accused persons are the only persons who has committed rape upon her one after the other. The accused Anil gave beating with fist , Slapped and also torned her wearing cloths i.e. shirt shalwar and he also forcibly committed rape upon her. Doctor C.B. Dabhas has also found that there are several multiple scratches over various parts of the body as detailed in his report Ex. PW1/A. PW17 M.K. Majumdar examined three parcels received by him and prepared biology and serology report vide Ex. PW17/A and B and there are positive report of grouping of the human blood and the seman test. The police officials have deposed with respect to the investigation carried on and there is no material defect during the course of investigation. There are few hours delay in registration of the FIR which has been well explained from the circumstances of the case as deposed by PW4 Geeta in her statement. In these circumstances all the accused persons are liable to be convicted as per the charges framed against them.

Per contra, Ld. Counsel for the accused persons submitted that all the accused persons have been falsely implicated by the prosecutrix with an oblique motive of coercing the accused persons to prevent their sister S.C. No. 160/1/09 Page18/36 from deposing against the husband of the prosecutrix Geeta in the case FIR No. 130/04 u/s 376 IPC of P.S. DLF Gurgaon, Haryana. The bare perusal of testimony of the prosecutrix with rukka Ex. PW4/A, apparently there are material improvement in the version first given to the police and the version given by the prosecutrix during her examination before court. It is further asserted by the prosecutrix in Ex. PW4/A that the entire case at Gurgaon was framed by the sister of the accused persons in the active conspiracy with the accused persons along with one Mr. Ombir Gupta, Prop. Proprietor M/s Hemgiri Properties. The prosecution during her examination propounded a new story asserting therein that the prosecutrix had appropriated the earnest money given by the family of the accused persons through Himgiri Property Dealer for inability of the accused family in liquidating the remaining sum in terms of Byana agreement. The prosecutrix further alleged that the disgruntled with appropriating of the earnest money, the accused family have framed up the husband of the prosecutrix in a false case. The expert evidence examined by the prosecution not only impeaches the creditworthiness of the prosecutrix but also corroborates defence of the accused persons concerning the present case being falsely framed up by the prosecutrix. It is submitted that bare perusal of the MLC of the prosecutrix appears that there were seven scratch injuries on the person of the prosecutrix when she was physically examined and the same was alleged to have been caused by accused Ajay after all the three accused persons committed rape on the prosecutrix. The aforesaid linear scratch marks, there is not even a single abrasion of bruise injury on the person of the prosecutrix, which would have ordinarily erupted on the person of the prosecutrix if she had been S.C. No. 160/1/09 Page19/36 mercilessly beaten up or if had resisted alleged gang rape. Meaning thereby, that though the alleged rape was resisted by the prosecutrix but she surrendered herself to the accused persons owing to the physical beatings and dragging done to her by the accused persons and there is not even a single abrasion or bruise observed by the doctors during the physical examination of the prosecutrix despite endless beating of fist, slaps, kicks and dragging on takht.

It is further submitted that as per the chemical examination completely rules out possibility of the rape having been committed. It is worthy to mention herein that the slides of vaginal swab sent for forensic examination clearly spell out negative for semen test and it would be difficult to assume for the court that vaginal swab may test negative for semen, when out of three accused persons two had allegedly committed rape without wearing condom. The fact becomes significant in the light of the factual matrix that the medical expert has not opined as to commission of rape in any of its report. In this view of the matter prosecution cannot be permitted to harp on availability of semen on the cloths of the victim precisely for two reasons, i.e. the serological report dated 4.5.05 could not be detect origin of semen except the fact that it was of human origin, it is submitted that in absence of matching of semen group with that of the semen group of the accused persons, it cannot be used as a circumstance to connect the accused with crime, precisely when the prosecutrix has reason to falsely implicate the accused persons and in her endeabour of doing so, she has not even refrained from inflicting self injuries on her person.

There is inordinate and unexplained delay in reporting the matter to S.C. No. 160/1/09 Page20/36 police. As per the case of the prosecution, after alleged commission of rape, she managed to escape from the house of the accused persons at about 4 am to 5 am in the morning as mentioned in Ex. PW4/A as well as examination in chief, she immediately rushed to the police station whereas as per rukka as well as PW16, she had reached at police station at about 9.55 am. This delay of five hours in reaching down to the police station attains significance particularly when the prosecutrix herself asserts that it took her 20 minutes to reaching down to the police station from the place of occurrence. The distance between the spot is roughly one kilometer which can be traveled down in 10 to 15 minutes while walking. The manner in which the prosecutrix has reported the cause of delay, it raises serious doubts about the genuineness of the version of the prosecutrix The conduct of the prosecutrix that she has manged to escape from the custody of the culprits, would take breakfast at a tea stall with her torn cloths, which makes her version highly improbable. PW19 is one of the IO has not explained the delay in registration of FIR.

It is further submitted that no incriminating material available on the spot to establish commission offence as alleged by the prosecutrix. The incident occurred in the house of the accused persons and room would have been found in messed up condition, there must have been blood spots of the prosecutrix in the room since she had been allegedly given seven injuries with sharp edged weapon on her person, alleged used condom must have been found from the spot. As such no incriminating articles were available at the spot, which also cast doubt on the story of the prosecution.

It is further submitted that the prosecution has failed in obtaining S.C. No. 160/1/09 Page21/36 corroboration from the independent witnesses, despite their availability on the spot. The IO PW16 has deposed in his examination that from the spot inquiries he examined independent witnesses from the vicinity, but none supported the case of the prosecutrix. The prosecutrix has also engaged a TSR and paid fare of Rs. 250/- for both ways and if the auto was genuinely engaged by the prosecutrix, he would not have left the spot without taking the prosecutrix back. Absence of auto driver again casts serious doubts in the story of the prosecutrix as to whether she had visited the spot on 8.8.2004 or not.

It is further alleged that the prosecutrix raising alarms for her rescue, had there been any such situation, somebody in the vicinity might have heard the noise. In absence of any corr0borative evidence from the vicinity, the version of the prosecutrix, which is full of material improvements and contradictions, can not be used to bring home the guilt to the accused and prayed for acquittal of the accused persons. Counsel for accused also relied upon Tameezuddin @ Tammu Vs. State of (NCT) of Delhi 2009 (4) JCC 2809, Kuldeep K. Mahato, Vs. State of Bihar 1998 CRI. L.J. 4033.

In view of the rival contention and the material on record, it is true that in case of rape evidence of prosecutrix must be given prudence consideration.

The Supreme court has observed in catena of judgment that in rape cases a conviction can be based on the sole testimony of the prosecutrix if the same is reliable and trustworthy.

In the case of Madho Ram and Anr. Vs. The State of UP, AIR 1973 SC 469, The Apex court has observed that " The only rule of law is S.C. No. 160/1/09 Page22/36 the rule of prudence, namely the advisability of corroboration should be present in the mind of the judge or the jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before the conviction can be allowed to stand."

Further in case State of Rajasthan Vs. N.K. (2000) 5 SCC 30 the Supreme court has observed that" A plethora of decisions by this court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non- production of doctor's report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence."

Similarly in case State of Rajasthan Vs. Biram Lal (2005) 10 SCC 714, wherein it was observed that " if the sole testimony of the prosecutrix is free from blemish and implicitly reliable, then a conviction can be recorded on that basis.

As regarding the evidence of victim PW4 Smt. Geeta she is a educated lady having kids. Her husband is behind the bar, in a case of rape of the sister of the accused persons. The accused Ajay Kumar is the S.C. No. 160/1/09 Page23/36 bad character of the area. The victim had indeed require of money for case pending against her husband. She has enter into an agreement with the family member of the accused through Himgiri Property Dealer to the tune of Rs. One lakh was given as earnest money by the family of accused persons out of Rs. 7 lakhs has agreed to sale her property bearing No. BB-74C, located in Shalimar Bagh Delhi in favour of Ram Pyari. The Ram Pyari and her family members failed to pay remaining balance amount of the sale price so the earnest money stood forfeited. Out of animosity between the parties husband of Geeta involved in rape case with Asha sister of accused persons decided at Gurgaon wherein husband of the victim was convicted vide judgment, dated 24.5.05. The present accused persons certainly had taken the revenge of committing rape upon their sister. It is also admitted by victim Smt. Geeta and she had approached to the house of Ram Pyari, mother of the accused persons and paid Rs. 30000/- on 8.8.04 at about 7 pm and when she reached at the house of the accused persons at Shastri Nagar found malafide intention of the accused persons she tried to run away from there but she was pushed in a room along with all the three accused persons along with their mother. The accused Anil forcibly entered into the room give beatings and tried to commit Galat Kam. She tried to save herself but the accused Anil hold her hands, torn her cloths, shirt and Salwar and he started forcibly committed rape upon her to put of her cloths from her body she became naked then lying her on the Deewan and committed forcibly sexual intercourse and during commission of rape she tried to save herself. Thereafter accused Ajay forcibly committed rape upon her and was saying that he was taking revenge of his sister. Thereafter S.C. No. 160/1/09 Page24/36 accused Anil committed forcibly rape upon her. The accused were abusing in filthy language and also taken out her wearing cloths from her body and tried to torn her cloths. The accused Ajay also scratched on her body with some sharp object to which she sustained scratch injuries on her thigh, hands, chest and abdomen and he also uttered her that she shows the injury to her husband and telling him that the accused persons have taken the revenge of allegation of rape upon their sister. Due to act of the accused persons her body become senseless and she also felt giddiness and then become unconscious and she remained lying in the said room till morning. In the cross examination on behalf of accused persons she admitted that sister of the accused persons made a case of rape against her husband and her husband has been convicted in the said case and he is in Jail. Therefore, the deposition of Asha, sister of the accused persons is much prior to the deposition of PW4 victim Geeta and the case against her husband was much earlier to the present one. Asha sister of the accused statement was recorded on 19.2.2005 and the present incident took place much prior i.e. 8th and 9th , August, 2004. The prosecutrix alone cannot go to the house of the accused persons to take revenge from the accused persons and their family members rather accused persons have allured her to come at their house by way of returning to the part payment of the earnest money. The accused Ajay had gone to her house at Munirika and asked her to give Rs. Four lakhs to withdraw the rape case which was lodged by his sister. She told that she did not have such a huge amount to which accused Ajay told her that she should meet his mother in this respect at his residence at B-1359, Shastri Nagar, Delhi. In cross examination on behalf of accused persons she S.C. No. 160/1/09 Page25/36 denied each and every suggestion made by the defence counsel. The incident took place in the room belonging to the accused persons which has no window and ventilator and she raised alarm but as there is no window or ventilator in the room as such no useful purpose served for raising alarms for help. The said room is situated entirely deep in side the house there was no window or ventilator in that room. The question of help after noise heard by some neighbourer will not arose even through the voice have been heard by neighbourer and other family members. No neighbours or family members will not come to rescue her they are living in same vicinity. She correctly identified the accused persons as they are the real culprit who committed rape upon her..

Counsel for accused contended that prosecutrix has not examined any neighbourer , auto rickshaw driver or some other independent witness and non examination of such person certainly hamper the case of the prosecution to this effect, this contention does not found any strength when there are serious allegation against the accused persons even through she has been thoroughly cross examined, no one will come forward to depose against the accused persons as one of the accused is B.C of the area. The deposition made by the prosecutrix in the PS on 8.8.04 at around 9.55am she has ran away from the house of the accused persons in between 4-5 am. The physical and mental condition of the prosecutrix at that time before the police station is not normal. She may not be able to depose each and every event in chronicle manner. She was in great mental trauma. She has not come out from the atrocities as suffered by her. She has gloomy , physical and mental depression and in any state of health and there is no hard and fast rule as to how crux of S.C. No. 160/1/09 Page26/36 evidence is associated. The judicial approach as opted in dealing with such evidence, such evidence should not be rejected because the deposition made by the prosecutrix is contradictory and made improvement. The version is towards the charges leveled against the accused persons. and the associated evidence as brought on record is reliable.

The accused persons are living in the same locality where the other neighbrours or independent persons are living. No neighbour or shopkeeper or independent person will come forward to be involved themselves in police case and so as to put themselves in trouble with the accused persons, as one of accused is B.C of that area. As regard to the auto rickshaw driver , if auto driver get the money as to the fare charges, whey he should wait for the passenger. It can be possible , that the accused persons, get auto driver free after making him the necessary payment of auto fair. Even though the accused persons did not allowing any neighbourer, shopkeeper and auto driver to be witnesses of the incident which took place within the four wall inner core of the house of the accused persons. The PW4 Geeta in her statement categorically stated that three shops exists in the house of accused persons were closed. The DW2 Lajjawati house is at the distance as such she cannot be witness of incident.

In a case titled as State of Punjab V. Gurmit Singh, 1996 CrLJ 1728 (SC wherein it has been observed that " Corroborative evidence is not necessary in a case of rape. The female victim of rape is not an accomplice. It is improper to test her evidence with a certain amount of suspicion.

PW2 Dr. C.B. Dabas examined the prosecutrix and deposed that there are several multiple scratches over various parts of the body as detailed in his report Ex. PW1/A. The prosecutrix was examined on 8.8.04 at about 12.30 pm, thereafter referred to Gynecologist with the alleged history of sexual assault on 8.8.2004 night. Multiple scratches found over and above breast, leg and both thighs. Undergarments and vaginal swab taken. On the MLC of Ajay there was abrasion on the right side of the face and mouth. The accused Ajay was examined on 9.9.2004. The accused Anil was medically examined on 4.11.2004 he was referred for medical legal expert and there was no external injury was found on the body and sexual part was developed and opined that there is nothing to suggest that person examined is not capable to do sexual intercourse. Dr. C.B. Dabas while examining the victim has also mentioned the multiple leniel scratch on the body of victim, though it cannot be said that even though the accused Ajay also sustained the external injury as mentioned in the MLC. The MLC of victim shows that no fresh injuries on her private part even on her vulva. The hymen found to be ruptured. However, there was fresh injuries on her breast. There are multiple leniel stretches and abrasion over the various parts of the body. Doctor has observed that it can be self inflicted but there is no such evidence or suggestions has placed on record that the injuries as shown in the MLC has been inflicted by victim herself. One or two injuries can be caused self inflicted but several injuries as shown in the MLC as mentioned on the breast and other parts of body cannot be self inflicted. This argument does not found any force even otherwise the victim is a married woman or having two children and hymen can be S.C. No. 160/1/09 Page28/36 naturally ruptured.

So far as with respect to the FSL report regarding blood and semen there was a human blood and human semen detected on salwar is marked A-1, there was positive of blood test found on the Kameej worn by prosecutrix Smt. Geeta. There was also positive human blood and human seman test on the Sameej and panty vide Ex. PW17/B is the serological analysis expert which are containing human blood and semen on Salwar, Kameej, Sameej and panty. The doctor examined all the three accused persons found them fit to performing sexual intercourse. The contention of Ld. Counsel for accused persons that there was no grouping of semen or blood was matched with the semen or blood of the accused persons. As per the MLC of the prosecutrix there was leniel abrasion on her person and there are external injuries on the person of accused Ajay. But there is no explanation given by the accused persons that how the semen has been come on the wearing cloths of the prosecutrix. The wearing cloth was seized after the incident while the victim was medically examined. It is not the defence of the accused persons that the victim's cloth was washed away and seized after fews days or the case property has been tampered. Mere non conducting of the grouping of the semen and blood, do not hamper the case of the prosecution where there are other overwhelming evidence on record. PW17 M.K. Majumdar, Sr. Scientific Officer has been examined and proved his report Ex. PW17/A and PW17/B. There is no such suggestion was made by Ld. Defence counsel that report has been manipulated tampered or prepared in connivance. The FSL result are conclusive in above and same has been corroborated with the deposition of the prosecutrix.

The absence of injuries on the body of the prosecutrix, generally , gives rise to an inference that she was consenting party to coitus. Where the prosecutrix had received multiple injuries on the various parts of her body it indicated that she offered resistance when she was subjected to sexual intercourse. It would be too much to hold that whenever a prosecutrix is found to have sustained, no visible injury in a case of rape, consent on her part should be presumed. It would amount to leaving the unprotected girls at the mercy of the wolves of the society. It is no where version of the accused persons that the prosecutrix is consenting party. The doctor has categorically stated that the hymen ruptured and admitted two fingers refuted capacity of the prosecutrix to have sexual intercourse even she is the mother of two kids. Prosecutrix PW4 Geeta is mother of two children and age about 38 years and condition of her private part is found as per MLC which is natural one, it cannot be said that she is habitual to sexual intercourse. Each and every material facts cannot be mentioned at the time of recording the FIR as she was upset. The internal injury on her private part cannot be possible as she was a growing up lady but several injuries on her person have been found which reflect resistance and struggle of her part and hence in this telly corroborative, the version of the prosecutrix and also negative the version of the accused persons regarding that no such incident has taken place and the accused persons has been falsely implicated as the prosecutrix Geeta wanted to take revenge. The absence of injuries on the penis either on the accused or on the private part of prosecutrix does not shows the prosecutrix did not resist but absence of injuries is not by itself sufficient to hold that the prosecutrix was a consenting party. May be S.C. No. 160/1/09 Page30/36 being frightened, she was nervous of fear. she had resisted but not to the extend since become perplexed or not so physically strong as to the accused persons. It cannot be said that whenever resistance is offered there must be some injury on the body of the victim. Even through it is well settled that non examination of doctor and non production of medical report would not be fatal to the prosecution case if the evidence of prosecutrix and other witnesses is worthy of credence and inspire confidence, as observed in case titled as State V. Dayal Sahu (2005) Cri LJ 4375.

So far as with respect to the delay in lodging the FIR. The contention made by Ld. Defence Counsel that the prosecutrix escaped from the house of the accused persons at around 4-5 am as per the rukka which is written in the PS at about 9.55 am and there was a delay of five hours in reaching down to the PS and lodged the complaint is not much delay as the prosecutrix has been escaped from the custody of three young physically built up assailants. She was under great trauma and physical and mental agony after being committing rape upon her, victim has to take sufficient time to physically and mentally stable to take appropriate action before proceed to arrive at any conclusion and think the pros and cons of the mis-happening. The prosecutrix in her deposition in court, which has been conducted four time in the court have made hue and cry and consistently leveling the allegation of rape upon her by the accused persons present in the court one after the other, in a room confining of the four wall where no one can enter from any side The deposition made by PW4 Geeta victim in a ocular and consistent manner which can be relied upon. There is no plausible reason to give up the trustworthy S.C. No. 160/1/09 Page31/36 evidence made by the prosecutrix PW4 Geeta.

The FIR was lodged promptly soon after recording the statement of prosecutrix and promptly sent the special report to the Higher authorities and area Magistrate. The prosecutrix Geeta was promptly medically examined. Therefore, there is not much delay in lodging the FIR and the delay of four- five hours has been well explained. . Prosecutrix has not stated in her examination, that any persons has seen her, while committing the offence or while escaped form the house of accused persons except one passers by to whom she asked the location of police station.

Mere delay in filing First information Report is no ground to create doubt in the case of the prosecution, why the deposition given by prosecutrix should not be accepted. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the testimony of prosecution witnesses, solely on the ground of delay in lodging the First Information Report. There may be various reasons for filing a complaint after some delay, that the prosecutrix may be threatened and she might be worrying about her future, she might have been frightened and may be traumatic state of mind. It is well settled the accused is not entitled to acquittal and the prosecution evidence cannot be discarded on the ground that the complaint was not filed immediately. The filing of complaint after considerable lapse of time is not the grounds which may be thrown out the prosecution case. The prosecutrix is a married woman, she will not do nothing without informing to her family members or any other relatives. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint S.C. No. 160/1/09 Page32/36 was false. The reluctance to got to the police is because of society 's attitude towards such woman, it casts doubt and shame upon her rather than comfort and sympathies with her. Therefore, delay of 3 - 4 hours in lodging the complaints in such cases does not necessarily indicate that her version is false. In case titled as State V Gurmit Singh, AIR 1996 SC 1393, wherein it has been observed that " the courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.

Therefore, in the recent case, delay of four -five hours in lodging the complaint is not much delay and will not fatal to the case of the prosecution. The prosecutrix appeared in the police station , have given true version as happened with her.

As regard to the defects as brought by the Ld. Defence Counsel during the course of investigation, court has been evaluating the evidence and find out the material and found no material defect in the investigation and if there is any defect that will not hamper the case of the prosecution. It would not be correct to acquit the accused persons solely on account of minor defect in investigation. To do so would tantamount to playing into the hands of the Investigating Officer, even if the investigation is designedly defective. On the close scrutiny of the evidence loopholes in the investigation were made deliberately to help the accused at the cost of the victim to acquit the accused solely on that ground would be adding S.C. No. 160/1/09 Page33/36 insult to injury.

The identification of the accused persons is not disputed at any occasion , they are well known to the victim vis a vis the accused persons also knew the victim.. Even through woman who has been raped would not forget the face of the person who had committed forcible sexual intercourse with her. Hence even in absence of identification parade, her evidence can be accepted.

Counsel for accused persons have also urged that the accused persons have been falsely implicated in this case as prosecutrix wanted to take revenge for conviction of her husband on the deposition of Asha in a rape case. Vis a vis accused persons were also in a mood to take revenge through the prosecutrix from her and called her at their residence since the husband of Geeta has involved and confine in judicial custody in the rape case of their sister Asha, as such accused persons wanted to take revenge and have committed rape upon the prosecutrix Geeta. The accused Ajay made the scratches on the body , thigh, chest of the prosecutrix and also stated that he has taken the revenge of the rape of his sister Asha and told to the prosecutrix , to show the scratch injury to her husband. The testimony of prosecutrix have been corroborated with the medical and serological report. Non availability of any incriminating evidence from the place of occurrence is beyond control of the victim and the investigation necessary since the place of incident was house of the accused persons and there is every possibility to remove all incriminating evidence available at the spot within the sufficient period of time, as after incident police arrived at the spot which was found locked and there was a sufficient period of time in S.C. No. 160/1/09 Page34/36 which incriminating evidence like the bed sheets, used condom etc can be removed or it may be possible that Investigating Officer may deliberately have not collected the evidence from the spot in connivance with the accused persons. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.

Thus in view of aforesaid discussion there was continues resistance by the prosecutrix and thus, it cannot even by a stretch of imagination be said that she had voluntarily participated in the sexual act. There is no question of falsely implication of the accused persons in the present episode of sexual assault, forcibly sexual intercourse and rape with the prosecutrix Geeta where the honour of the prosecutrix and her family remain on stake and the prosecutrix has to suffer mental agony throughout her life. The court must be alive to the fact that rape not only distracts the personality of the victim but degrades her very soul. Prosecutrix generally faces humiliation and is being harassed by the defence in her cross examination during the trial. It is well settled that if corroboration is insisted prosecution placing reliance on the testimony of prosecutrix it will be nothing but adding insult or injury and it will be insult to womanhood. It has been laid down in so many authorities that solitary statement of prosecutrix even if not corroborated can be the basis of conviction if the same is truthful. The contention raised on behalf of the accused persons does not support any ocular evidence even the defence raised. In support of deposition of defence witnesses Ombir Gupta and Smt. Lajjawati does not found to be plausible, trustworthy and does not inspire confidence. In view of the ocular , consistent and S.C. No. 160/1/09 Page35/36 trustworthy deposition made by prosecution witnesses including the statement of the prosecutrix/victim Geeta and the documents in support of the allegation made against the accused persons. The testimony of the prosecution witnesses are consistence , believable, trustworthy and inspired confidence to bring home the guilt of the accused persons beyond all reasonable doubt. In such types of cases availability of independent witnesses cannot be expected. Mere basis of some contradiction or variation in the statement of prosecutrix on account of lapse of memory or recollection due to expiry of time, the case of the prosecutrix cannot be thrown out.

Therefore court reached at the conclusion that the prosecution is able to prove its case against the accused persons namely Anil Kumar, Ajay Kumar , and Amit Kumar All S/o Late Om Parkash beyond all reasonable doubt. The testimony of the prosecution witnesses are believable , trustworthy and corroborative. Hence all the accused persons namely Anil Kumar, Ajay Kumar and Amit Kumar all son of Late Om Prakash are held guilty and convicted for offence punishable u/s 376 (2)(g) IPC. They be taken in to custody and be produced on 8.10.2010 for hearing them on the quantum of sentence.

ANNOUNCED IN THE OPEN COURT TODAY ON 01.10.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 160/1/09 Page36/36