Delhi District Court
State vs . 1. Usman @ Kale, on 14 October, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.22/13.
Unique Case ID No.02405R0092902011.
State Vs. 1. Usman @ Kale,
S/o Sh. Subhan Khan,
R/o VPO Meerpur, P.S. Hatin,
Distt. Palwal,
Haryana.
2. Shamshad @ Khutkan,
S/o Sh. Haqim Ali,
R/o C/o Haji Kasim,
Village Dhauj, Billa Colony,
Sector-55, Faridabad,
Haryana.
3. Iqbal @ Billi,
S/o Sh. Haqimuddin @ Suka,
R/o Village Dhauj, Billa Colony,
Sector-55, Faridabad,
Haryana.
4. Shahid @ Billi,
S/o Sh. Kallu,
Village Dhauj, Billa Colony,
Sector-55, Faridabad,
Haryana.
5. Kamruddin @ Kamru @ Mobile,
S/o Late Sh. Suleman,
R/o Village Dhauj, Billa Colony,
Sector-55, Faridabad,
Haryana.
Date of Institution : 02.2.2011.
SC No.22/13. Page 1 of 131
FIR No.248 dated 24.11.2010.
U/s.365/376(2)(g)/506 IPC
P.S. Dhaula Kuan.
Date of reserving judgment/Order : 08.9.2014/22.9.2014.
Date of pronouncement : 14.10.2014.
JUDGMENT
1. The present case relates to the abduction and gang rape of a girl ( a BPO employee) on the night intervening between 23.11.2010 and 24.11.2010 by five persons and is commonly known as 'Dhaula Kuan Gang Rape Case'. The prosecutrix namely 'P' (assumed name) was pulled into a white colour Mahindra Pick Up vehicle on the aforesaid night at about 12.40 a.m. after she alongwith her friend 'S' (assumed name) had been dropped near M/s. Sharma Automobiles, Moti Bagh, New Delhi, by their office cab. They both were working as Sr. Customer Care Officers at BPO M/s. Convergys, 4th floor, Vipul Agora Building, Gurgaon, Haryana. The prosecutrix was gang raped inside the vehicle on the way towards Mangolpuri and also after stopping the vehicle at Mangolpuri. The assailants then dumped her near industrial area, Mangolpuri, and then ran away. The police appears to have identified the assailants on the basis of the investigation carried out pursuant to the statements given by the prosecutrix, her friend 'S' as well as the information received from the secret informers and ultimately, the abovenamed five accused persons came to be arrested. According to the prosecution, these five accused had abducted and gang raped the prosecutrix on the fateful night whereas the accused claim to have been falsely implicated in this case.
SC No.22/13. Page 2 of 131Prosecution case :
2. It is the case of the prosecution that on 24.11.2010 at about 1.30 a.m., an information had been received in Police Control Room from mobile no.9999000863 to the effect that a girl was pulled into a Matador Tempo vehicle by some boys near Sharma Automobiles Auto Service Centre, Behind Moti Bagh Gurudwara, who were armed with weapons and have taken Ring Road. The information was transmitted to P.S. Dhaula Kuan where it was recorded as DD No.3A and was sent to SI Harish Kumar for suitable action. Inspector Nipun Kumar was also informed about the incident on telephone. SI Harish Kumar alongwith Const.
Jaiveer reached aforesaid spot near Sharma Automobiles where they met the eye witness Ms. 'S'. Meanwhile, Inspector Nipun Kumar alongwith driver Const. Thakur Dass also reached the spot. SI Harish Kumar made inquiries from 'S'. She told him that she has received a call from her friend i.e. prosecutrix 'P' stating that she is in Mangolpuri and she has been advised to make a call at telephone no.100. Meanwhile at about 2.25 a.m. a call was received at Police Control Room from mobile no.9999191076 and the lady caller stated that she is near T-2/190, Phase-1, Mangolpuri Industrial Area, where she has been dropped by some boys, who had kidnapped her and raped her. The information had been sent to P.S. Mangolpuri where it was recorded as DD No.15A and it was entrusted to SI Sudhir Rathi for suitable action. Accordingly, SI Sudhir Rathi alongwith Const. Sudhir Kumar had proceeded to the spot.
3. The prosecutrix was recovered from Mangolpuri Industrial area and was brought to P.S. Dhaula Kuan where her SC No.22/13. Page 3 of 131 statement was recorded by SI Harish Kumar. She stated that she alongwith her friend 'S' was dropped by their office cab near Sharma Automobiles, Moti Bagh, during the night at about 1.10 a.m. and when they started walking towards their residence, suddenly one white colour pick up vehicle came there from behind and stopped near them. There were three boys sitting in front and two boys sitting at the back of the vehicle. The three boys sitting in front came out of the vehicle, one of them showed a pistol like thing to them, abused them saying 'Bastard' and then they grabbed her. They also tried to grab 'S' but both of them started screaming, upon which they took her inside the front portion of the above vehicle and took the vehicle towards Dhaula Kuan on the Ring Road. Her friend 'S' ran away from the spot in fear. While in the vehicle one of the boys sitting on her left tore off her underwear, removed her jeans and raped her in the moving vehicle. Meanwhile, one of her mobile phones rang in her pocket, upon which one of the two boys sitting on her right took out the mobile phone and switched it off. One of those two boys also tried to close her eyes with his hand. She was crying while the vehicle was being driven very fast and then stopped at a lonely place at Mangolpuri where all the three boys sitting in front portion of the vehicle with her took her to the rear open portion of the vehicle. There was a mattress spread on the floor of the rear portion of the vehicle where all the five boys then raped her one by one. She screamed but nobody came to her help. Thereafter they took her in the same vehicle and dumped her near Industrial Area Mangolpuri. She spoken to her Boss Niloy Pramanik on her mobile phone as he had already made a call to her on her another mobile phone which was on hold. She apprised him about the whole SC No.22/13. Page 4 of 131 incident and then called her friend 'S' on her mobile no. 9999000863 and narrated the whole incident to her, who advised her to dial telephone no.100. She further stated that the five boys, who raped her, were thin and aged between 20 - 25 years. They were having shabby looks and one of them was having curly hairs. All of the them were of medium height and the vehicle, in which she was abducted and raped, was not bearing any number plate.
4. On the basis of aforesaid statement of the prosecutrix, FIR was registered in P.S. Dhaula Kuan. The investigation was entrusted to Inspector Raj Kumari. She recorded supplementary statement of the prosecutrix and also the statements of other witnesses. Meanwhile, SI Harish had sent the prosecutrix alongwith Const. Santra to Safdarjung Hospital. The exhibits brought by Const. Santra from the hospital after medical examination of the prosecutrix were seized by Inspector Raj Kumari. She also inspected the spot of incident and prepared its site plan. She alongwith the prosecutrix visited another spot at Mangolpuri on 25.11.2010 and prepared its site plan at the instance of the prosecutrix. Massive search was begun for apprehending the assailants and tracing the vehicle used in the commission of crime. The prosecutrix also handed over to the IO 15 currency notes of Rs.10/- each tied by a rubber band saying that these were found in her purse but did not belong to her. The currency notes were seized by the IO. The exhibits of the prosecutrix were sent to FSL on 26.11.2010 for DNA fingerprinting.
5. It is further the case of the prosecution that upon receipt of information from a secret informer, IO alongwith other SC No.22/13. Page 5 of 131 staff reached village Dhauj on 02.12.2010 and arrested accused Usman as well as accused Shamshad @ Khutkan. Both the accused made their disclosure statements. Accused Usman stated in his disclosure statement that he alongwith Shamshad @ Khutkan, Iqbal @ Billi, Shahid @ Billi and Kamru @ Mobile steal cows from Delhi in their pick up vehicle and sell them in villages of Mewat - Dhasera, Firozpur, Soraka, Tai etc. They have purchased a Max Pick Up vehicle no.HR-27J-0964 from Jacom r/o village Utawar, P.S. Nuh, Mewat, about 4 or 5 months ago in the sum of Rs. 1,20,000/-. However, they had paid him only Rs.1 Lac and hence he did not handover the papers of the vehicle to them. They always kept a small mattress (Gudri) in the rear portion of the vehicle so that they can sit upon that. They had plan to come to Delhi on the night intervening between 23.11.2010 and 24.11.2010 to lift cows and accordingly they all consumed liquor, upon which they felt desire to have sexual intercourse. When they reached Moti Bagh, they saw one Tavera vehicle running in front of their vehicle, in which girls were sitting on the rear seat. They started following Tavera vehicle and when Tavera vehicle dropped two girls on main Ring Road after passing Gurudwara, they found a golden opportunity and stopped their vehicle in front of those two girls. Thereafter Kamru, Shamshad and Shahid got down from the vehicle and tried to put both those girls in the vehicle. However, one of those girls cried intensely and ran towards the residential area. The other girl was caught as Kamru had pointed the revolver towards her from other side. She was forced to sit on the seat of the vehicle by Shamshad and Kamru whereas Shahid took the steering. Shahid was driving the vehicle, Kamru was sitting on the seat near another window with the girl besides him and Shamshad SC No.22/13. Page 6 of 131 was sitting in between the girl and the driver. He alongwith accused Iqbal @ Billi were sitting on the Gudri on the rear portion of the vehicle. The vehicle was driven towards Dhaula Kuan and then on to the Ridge Road, Karol Bagh. On the way, Kamru tore off the red colour underwear of the prosecutrix, forcibly took off her pant and raped her in the moving vehicle. The girl was crying in between and also attempted to grapple with them and recognise them, for which reason Shamshad shut her eyes and gagged her mouth. After raping her, Kamru made her to wear the pant again and the vehicle was taken to a dark and secluded spot in Mangolpuri. Shahid stopped the vehicle. The girl was brought down from the vehicle and taken to the rear portion of the vehicle. She was laid on the Gudri. First of all, Shahid raped her, then Shamshad then Iqbal and lastly he (Usman) despite her resistance. Usman also disclosed that he can recover the aforesaid revolver from his house as well his clothes which he was wearing at the time of incident as also the pick up vehicle in which crime was committed by them. He stated that accused Shahid has surrendered in an old criminal case on 26.11.2010 to conceal his involvement in this case and is lodged in Neemka Jail, Faridabad. He also stated that he can get the other accused apprehended from their hideouts and can also point out the aforesaid spots. He further stated that the Gudri had been taken by accused Shahid alongwith him.
6. The accused Shamshad @ Khutkan also made disclosure statement on the similar lines as that of accused Usman. He also disclosed that he can recover the pick up vehicle, in which the prosecutrix was kidnapped and raped as also the SC No.22/13. Page 7 of 131 clothes worn by him at the time of incident. He also disclosed that he can get the other accused apprehended from their hideouts and also can identify the spots wherefrom the prosecutrix was abducted and dumped.
7. Both accused Usman as well as accused Shamshad had also stated that in order to save himself from the involvement in the present case, accused Shahid @ Billi had surrendered in Faridabad Court on 26.11.2010 in connection with an old case and he has been lodged in Neemka Jail, Ballabhgarh, Faridabad. Both Usman as well as Shamshad were kept in muffled face. The motorcycle on which they were travelling at the time of their arrest was seized. Both the accused led the police party to village Tai where first accused Shamshad pointed out towards Mahindra Max Pick Up vehicle bearing no.HR-27J-0964 which was parked in the enclosed space belonging to one Bakkal saying that it is the same vehicle which was used in abduction and rape of the prosecutrix. At that time, accused Usman was stopped at a distance of 1000 yds. of that place. Thereafter accused Usman also pointed out the same vehicle which had been used in the commission of crime by him alongwith his associates. The outer body of the said vehicle was of white colour whereas its rear open portion was of green colour from inside. The vehicle was seized by the IO. The police party then returned to Delhi alongwith two accused as well as the said vehicle. Upon reaching Delhi, both the accused separately identified the spot near Sharma Automobiles wherefrom the prosecutrix had been abducted by them and the spot at Mangolpuri Industrial Area where they had raped the prosecutrix. Both the accused were got medically examined in SC No.22/13. Page 8 of 131 AIIMS Hospital. The exhibits given by the doctor were seized by the IO. Both the accused were produced before the concerned court in muffled face and application for conducting their TIP was presented. The accused were then remanded to one day's JC and were then lodged in Tihar Jail. The case property was deposited in the Malkhana.
8. It is further the case of the prosecution that Mahindra Pick Up vehicle no.HR-27J-0964 was got inspected by FSL team on 02.12.2010 and then was deposited in the Malkhana on 03.12.2010. The vehicle was further inspected and photographed by the Crime Team South District on 04.12.2010. The TIP of accused Usman and Shamshad was fixed for 04.12.2010. The TIP was conducted in Tihar Jail on the said date and both the accused were correctly identified by the prosecutrix. Thereafter the two accused Usman and Shamshad were sent to five days police custody. Production warrants were obtained from the concerned court against third accused Shahid @ Billi and were sent by special messanger to Neemka Jail, Faridabad, on 04.12.2010. On the same day, accused Shahid was produced from J.C. before the Ld. M.M. in Dwarka Court and he was arrested in this case. He made a disclosure statement admitting his involvement alongwith other co-accused in the abduction and gang rape of the prosecutrix. He further disclosed that he can recover the clothes which he was wearing at the time of incident and also the Gudri which had been taken by him alongwith him.
9. On the same day i.e. 04.12.2010 the fourth accused Iqbal @ Billi was arrested by SI Bhupender of P.S. Fathepuri Beri SC No.22/13. Page 9 of 131 and the information of his arrest was conveyed to IO Inspector Raj Kumari. She interrogated him and recorded his disclosure statement wherein he too confessed to his involvement alongwith other accused in the kidnap and gang rape of the prosecutrix. He also disclosed that he can recover the clothes which he was wearing at the time of incident. Both Shahid as well as Iqbal were produced before the concerned Ld. M.M. in muffled face and remanded to J.C. for one day. Their TIP was fixed for 07.12.2010 but they refused to participate in TIP. IO recorded the statements of the police officials, who had remained in the investigation on that day. Exhibits seized were deposited in the Malkhana.
10. Prosecution case further reveals that the fifth accused Kamruddin @ Kamru @ Mobile was arrested by SI Virender Prakash of P.S. Saket on 06.12.2010. IO Inspector Raj Kumari was informed about his arrest. She interrogated him on 07.12.2010 and recorded his disclosure statement wherein he also admitted his involvement alongwith other accused in the abduction and gang rape of the prosecutrix. He also disclosed that he can recover the clothes which he was wearing at the time of incident. He also pointed out the spot near Sharma Automobiles wherefrom they had abducted the prosecutrix and also the spot at Mangolpuri Industrial area where they had gang raped the prosecutrix. He was produced before the concerned M.M. in muffled face. He too refusd to participate in TIP. On 08.12.2010, IO Inspector Raj Kumari obtained PC remand of accused Iqbal, accused Shahid and accused Kamruddin for two days. On the same day, these three accused were subjected to forensic medical examination in AIIMS Hospital, New Delhi. The exhibits given by the doctor were seized SC No.22/13. Page 10 of 131 and deposited in the Malkhana. On 09.12.2010, the IO alongwith staff and the accused had gone to District Mewat, District Palwal and District Faridabad, in search of further case property. Accused Usman got recovered one countrymade revolver from his house in village Mirpur, District Palwal, which had been used by accused Kamruddin at the time of abducting the prosecutrix. IO prepared its sketch, converted it into a pullinda, sealed the pullinda with the seal of 'RK' and seized the same. Accused Usman also recovered one shirt and one pant from his house which he had worn at the time of incident. These clothes were also sealed in a pullinda and seized by the IO. Accused Shahid @ Billi got recovered one shirt and a lower from a room of his house in Billa Colony, Village Dhauj, which he had worn at the time of incident. These were also sealed in a pullinda and seized by the IO. Thereafter accused Iqbal @ Billi recovered one shirt and one pant from a suitcase kept in a room of his house in the same village Dhauj, which he had worn at the time of incident. These also were sealed in a pullinda and seized by the IO. Thereafter accused Shamshad @ Khutkan recovered one pant, one shirt and one sweater from a box kept in a room of his house in the same Billa Colony, Village Dhauj, saying that he was wearing these at the time of incident. These too were sealed in a pullinda and seized by the IO. Accused Kamruddin searched for his clothes in his house, which he was wearing at the time of incident, but could not trace those. The Gudri, upon which the prosecutrix had been gang raped in the rear portion of Mahindra Pick Up vehicle, also could not be found despite intense search.
11. Thereafter the prosecutrix identified all the five accused as well as the Mahindra Pick Up vehicle in P.S. Vasant SC No.22/13. Page 11 of 131 Vihar. Her supplementary statement was recorded by the IO. Her friend 'S' also identified the said pickup vehicle. The exhibits were sent to FSL through Inspector Balram for DNA fingerprinting. The hair strand of the prosecutrix was obtained and preserved in AIIMS, New Delhi, on 10.12.2010. The countrymade revolver and other samples were sent to FSL for ballistic examination and DNA profiling on 13.12.2010. Inquiries regarding ownership of Mahindra Pick Up vehicle no.HR-27J-0964 were made from Regional Transport Authority, Nuh, Mewat, Haryana, and it came to be known that the same is registered in the name of Mohd. Sabir. Son of Mohd. Issa, r/o Village Umra, Tehsil Nagina, Nuh, Mewat, Haryana. SI Sandeep Sharma made further inquiries regarding the same and recorded the statement of Mohd. Sabir's father Mohd. Issa, who stated that Mohd. Sabir had sold this vehicle to Mohd. Shaukat Ali of District Palwal, Haryana. It further came to be known that Bakkal s/o Sh. Usman is the cousin (son of maternal uncle of accused Iqbal @ Billi) and accused Iqbal used to visit the house of his maternal uncle in village Tai often. HC Yatender then contacted Mohd. Shaukat Ali, who stated that he had purchased the aforesaid Pick Up vehicle in partnership with Raees s/o Ashu from Mohd. Sabir in the month of May, 2009 but they had not transferred the ownership documents of the vehicle in their name. He further stated that the vehicle had been seized by the police in connection with a case and in order to get the same released from the court, Raees had got prepared a duplicate set of ownership documents of the vehicle and thereafter the same was sold to one Islam s/o Sh. Shubhan, r/o Palwal, Haryana, on the basis of an affidavit and power of attorney. Statement of Islam was recorded, who admitted that he had purchased the said vehicle from Raees SC No.22/13. Page 12 of 131 and further stated that the vehicle is being driven by his brother Usman @ Kale. All the documents regarding the aforesaid vehicle were seized.
12. The IO then obtained the call detail records of mobile phones of the accused as well as prosecutrix. She seized PCR form as well as the Log Book from the Control Room. She also seized the record pertaining to confinement of accused Shahid @ Billi in Neemka Jail, Faridabad. Record pertaining to ownership of the vehicle no.HR-27J-0964 was obtained from RTA Office, Nuh. Permission was sought from the DCP under Section 39 of Arms Act for prosecution of the accused for the offence under Arms Act. FSL result as well as ballistic report was obtained from FSL.
13. After completion of the investigation, Charge Sheet was prepared by the IO and submitted to the concerned Ilaqa Magistrate. Upon committal of the case to the court of Sessions, charges u/s.365/34 IPC, u/s.376(G) IPC and u/s.506/34 IPC were framed against all the five accused on 03.8.2011. Further Charge u/s.25/27/54/59 of Arms Act was framed against accused Usman @ Kale on the same date. All the accused denied the charges framed against them and hence trial was held.
14. At trial, the prosecution examined 57 witnesses to bring home the guilt of the accused. The accused were examined u/s.313 Cr.PC on 21.2.2014 wherein they denied their involvement in the kidnapping and gang rape of the prosecutrix. The accused besides denying the prosecution case in their statements u/s 313 Cr.P.C., also examined 10 witnesses in their defence. The brief SC No.22/13. Page 13 of 131 description of witnesses examined by prosecution as well as defence is given herein under:-
WITNESSES EXAMINED BY THE PROSECUTION AND DEFENCE
(1) PW1 is the prosecutrix, whose deposition would be discussed in detail later on.
(2) PW2 Ms. 'S' is the friend of prosecutrix 'P', who was with the prosecutrix when she had been kidnapped. Her deposition would also be discussed in detail in the later part of judgment.
(3) PW3 is Sh. Niloy Pramanik. He was working as a Team Leader in BPO M/s. Convergys India Services Pvt. Ltd., Gurgaon. The prosecutrix and her friend 'S' were in his team. He had received a call from Operation Manager at about 1 a.m. on the night intervening between 23.11.2010 and 24.11.2010 saying that the prosecutrix has been lifted by some boys. His further testimony would also be discussed in detail in later part of the judgment.
(4) PW4 is Mohd. Isa, son of Sh. Niyaz Mohammad. He is the father of Mohd. Sabir, in whose name vehicle no.HR-27J-0964 was registered. He deposed that his son had sold the said vehicle to Mohd. Shaukat Ali. He had handed over original affidavit Ex.PX1 bearing photographs of Mohd. Shaukat Ali, photocopy of Shaukat Ali's Election I. Card, photocopy of Special SC No.22/13. Page 14 of 131 Power of Attorney and photocopy of another affidavit to the IO on 11.1.2011.
(5) PW5 is Sh. Bakkal. He is the cousin of accused Iqbal @ Billi and a resident of village Dhauj. He turned hostile and did not support the case of the prosecution.
(6) PW6 is Sh. Abbas. He also turned hostile and did not support the prosecution case. He, however, stated that Bakkal, a resident of his village, is the cousin of accused Iqbal @ Billi. He, however, did not identify accused Iqbal @ Billi.
(7) PW7 is Sh. A.K. Srivastava, Assistant Director (Biology), DNA Fingerprinting Unit, F.S.L., Rohini. He has proved the Crime Scene Report regarding inspection of vehicle no.HR-27J-0964 as Ex.PW7/A. He proved his detailed DNA report as Ex.PW7/C and its forwarding letter as Ex.PW7/B. (8) PW8 is Dr. Sudipta Ranjan Singh. He had conducted medical examination of accused Kamruddin, accused Iqbal and accused Shahid and had obtained their penile swab, pubic hair sample and also preserved their blood sample on micro FTA card. He had handed over all these samples in sealed condition to the IO. He proved their MLCs as Ex.PW8/A, Ex.PW8/B and Ex.PW8/C respectively. (9) PW9 is Dr. Ashish Jain. He had conducted medical examination of accused Usman @ Kale. He preserved his underwear, pubic hair, penile swab, control swab and blood in EDTA vial as well as FTA SC No.22/13. Page 15 of 131 card and handed over these in sealed condition to the IO. He proved his MLC as Ex.PW9/A. (10) PW10 is Dr. Hari Prasad. He had conducted medical examination of accused Shamshad @ Khutkan and obtained his penile swab, control swab as well as his blood in EDTA vial and FTA card. He handed over these in sealed condition to the IO. He also produced his MLC as Ex.PW10/A. (11) PW11 is Dr. Karthik Krishna. She had conducted medical examination of the prosecutrix on 10.12.2010. She had obtained the scalp hair samples of the prosecutrix and handed over the same in sealed condition to the IO.
(12) PW12 is Dr. Kavita Soni. She had conducted medical examination of the prosecutrix on 24.11.2010 i.e. soon after the incident. She had preserved the debri collection, nail scraping, in between fingers, breast swab, clipping of pubic hair, vaginal secretion, culture, washing from vagina, rectal examination, urine and oxalate and inner as well as outer garments and handed over the same in sealed condition to the IO. She proved her MLC as Ex.PW12/A. She also proved the OPD Card of the prosecutrix as Ex.PW12/B. (13) PW13 Ms. P.C. Laldinpuii. She is the elder sister of the prosecutrix. Her testimony would also be discussed in detail in later part of the judgment. (14) PW14 is SI Ramesh Chander. He was posted as Duty Officer in P.S. Dhaula Kuan, on the night SC No.22/13. Page 16 of 131 intervening between 23.11.2010 and 24.11.2010 and had recorded DD No.3A regarding abduction of one girl by some boys in a Matador Tempo, behind Moti Bagh Gurudwara, Sharma Auto Service Centre. He had sent the information to SI Harish Kumar for necessary action and also informed ATO Inspector Nipun Kumar. He proved the DD as Ex.PW14/A. He had also registered the FIR Ex.PW14/B on the basis of rukka Ex.PW14/A. (15) PW15 is HC Shyam Prakash, who was MHC(M) in P.S. Dhaula Kuan. He had received all the exhibits deposited in the Malkhana regarding this case and had sent those to FSL on various dates.
(16) PW16 is Lady Const. Santara. She alongwith SI Harish (PW47) had taken the prosecutrix to Safdarjung Hospital for medical examination on 24.11.2010. She had received three sealed pullinas and a sample seal from the doctor which she handed over to IO Inspector Raj Kumari, who seized those vide memo Ex.PW16/A. IO had also prepared site plan of the spot at Sharma Automobiles in her presence.
(17) PW17 is Mohd. Sabir. He is the registered owner of vehicle no.HR-27J-0964 and had sold the same to Shaukat Ali vide affidavit Ex.PX1. He had also executed Special Power of Attorney in favour of Shaukat Ali.
(18) PW18 is Sh. Deepak. The Nodal Officer of M/s.
SC No.22/13. Page 17 of 131Vodafone Mobile Services Ltd. He proved the customer details and call detail records of mobile nos.9999611386, 9999000863 and 9999191076. (19) PW19 is Inspector Nipun Kumar. He had reached the spot near Sharma Automobiles, Ring Road, first of all from where the prosecutrix had been kidnapped. SI Harish (PW47) also reached there and on inquiries from 'S', who met them there, they came to know that the prosecutrix has been taken away in a Tata tempo like Pick Up van by 3 to 4 boys. He flashed the messages. Meanwhile 'S' received a call from prosecutrix in his presence saying that she had been left by kidnapper at Mangolpuri. He told 'S' to tell prosecutrix to dial telephone no.100. On getting information from the PCR that the prosecutrix has been located. He sent ASI Raldhu Ram to bring prosecutrix to P.S. Dhaula Kuan and accordingly prosecutrix was brought to P.S. Dhaula Kuan. He had also taken the truck no.HR-27J-0964 to FSL Roini on 02.12.2010 where it was inspected by Sh. A.K. Srivastava and his team. He had taken the truck to FSL again on 03.12.2010 for the same purpose. He had received two sealed brown envelopes from Sh. A.K. Srivastava, one containing some hair strands lifted in his presence from left side seat next to driver of the vehicle and another containing a piece of dirty check cloth seat cover, lifted in his presence from the vehicle. He seized those vide memo Ex.PW19/A and then SC No.22/13. Page 18 of 131 handed over the same to the IO. He also identified these during the course of his testimony before this court. He also identified the said vehicle from its photographs Ex.PW19/A1 to Ex.PW19/A6.
(20) PW20 is Const. Kusum Lata. He alongwith Inspector Balram had taken the prosecutrix to AIIMS on 10.12.2010 where hair sample of the prosecutrix was obtained by the doctor. The doctor handed over the sealed pullinda containing her sample to Inspector Balram, which he seized vide memo Ex.PW1/E. (21) PW21 Mohd. Dilshad. He was the Computer Operator in P.S. Dhaula Kuan in the night intervening between 23.11.2010 and 24.11.2010. He had typed the FIR Ex.PW14/B on the computer on the basis of rukka given to him by Duty Officer SI Ramesh Chand. Thereafter he had freezed the FIR in the computer, after which no addition/alteration could be done to it.
(22) PW22 is SI Sudhir Rathi. He was posted in P.S. Mangolpuri on the night intervening between 23.11.2010 and 24.11.2010 and was on night emergency duty. He received DD No.15B at about 2.25 a.m. in the night to the effect that a girl has been gang raped at T-2/190, Industrial Area Phase-I, Mangolpuri. He alongwith Const. Sumit reached the said spot and met the prosecutrix. He informed Inspector Nipun (PW19) of P.S. Dhaula Kuan about the same on telephone and thereafter ASI Raldhu SC No.22/13. Page 19 of 131 Ram (PW45) reached there and he handed over the prosecutrix to him.
(23) PW23 is Dr. Jagminder Singh. He is the Ld. Metropolitan Magistrate, who was assigned the duty of conducting TIP of accused Shahid @ Billi and Iqbal @ Billi. According to him, both refused to take part in TIP. He proved his reports as Ex.PW23/A and Ex.PW23/B. (24) PW24 is Sh. Harpal, a Clerk in RTA office, Nuh, Mewat, Haryana, who produced the certificate of registration of Mahindra Pick Up van no.HR-27J-0964 as Ex.PW24/A, according to which same is registered in the name of Mohd. Sabir s/o Mohd. Isa.
(25) PW25 is Sh. Ahmed Jan, a Clerk from RTA, Hathin, District Palwal, Haryana, who proved the registration certificate of motorcycle no.
HR-52B-1678 as Ex.PW25/A, according to which it was registered in the name of Mohd. Islam Khan s/o Sh. Subhan, r/o Village Mirpur, Tehsil Hathin, District Palwal, Haryana.
(26) PW26 is Sh. Krishan Kumar. He was the driver of Chevrolet Travera vehicle bearing registration no.HR-55ET-6072 and had dropped the prosecutrix and her friend at Sharma Automobiles, Moti Bagh, New Delhi, at about 1.10 a.m. on the night intervening between 23.11.2010 and 24.11.2010.
(27) PW27 is Const. Hukam Chand from Ballabhgarh Jail, Haryana, who proved the record SC No.22/13. Page 20 of 131 showing that accuse Shahid @ Billi was lodged in their jail in case FIR no.309/10, P.S. Mujeshar, Faridabad, on 26.11.2010 and then produced before Sh. Pawan Singh Rajawat, Ld. M.M., on 04.12.2010 in connection with the present case. He proved the relevant page of the register of the jail as Ex.PW27/A and the report of the Deputy Superintendent, District Jail Faridabad, as Ex.PW27/B. (28) PW28 is Sh. K.C. Varshney, Deputy Director, F.S.L., Rohini, who had examined countrymade pistol in this case and proved his report as Ex.PW28/A. (29) PW29 is HC Udaivir. He was posted as photographer in Mobile Crime Team, South District, New Delhi, and had taken photographs of Mahindra Pick Up vehicle in P.S. Dhaula Kuan on 04.12.2010 which he proved as Ex.PW29/A1 to Ex.PW29/A17. (30) PW30 is Const. Sandeep. He had taken the copy of DD No.3A from P.S. Dhaula Kuan on 24.11.2010 and handed over the same to SI Harish Kumar at the gate of the police station.
(31) PW31 is HC Dheer Singh. He had taken three sealed pullindas to FSL on 26.11.2010.
(32) PW32 is Vinod Kumar. He is the Manager (HR) in Absolute Security Services Pvt. Ltd., IInd Floor, Satya Niketan, Moti Bagh, New Delhi. He had handed over to the police official Hard Disk of the computer in their office containing recording of CCTV camera installed on the main gate of the company SC No.22/13. Page 21 of 131 pertaining to night intervening between 23.11.2010 and 24.11.2010 and proved the same as Ex.P23 as well as its seizure memo as Ex.PW32/A. (33) PW33 is Rohtash Sharma. He is Notary Public in District Palwal, Haryana. He had attested the Mukhtiarnama Khas and Halfnama Mark-PW7/D and Mark-PW17/D1 respectively, purportedly executed by PW17 in favour of Sh. Shaukat at the time of sale of vehicle no.HR-27J-0964 to him.
(34) PW34 is Naresh Kumar Sharma. He is the Advocate/Oath Commissioner in Tehsil Hathin, District Palwal, Haryana. He had attested the Halfnama Mark-PW34/A executed by Sh. Islam at the time of purchase of vehicle no.HR-27J-0964.
(35) PW35 is Sh. Virender Singh. He is the Secretary, Regional Transport Authority, District Nuh, Haryana and proved the record in respect of Mahindra Pick Up van bearing registration no.HR-27J-0964 which shows that its registration in the name of Mohd. Sabir s/o Mohd. Isa. He proved its RC as Ex.PW35/A. (36) PW36 is Inspector Balram. He had remained in the investigation of this case on various dates. IO had prepared site plan of both the crime spots in his presence on 25.11.2010. He had taken some sealed pullindas alongwith sample seal to FSL on 03.12.2010. He had arrested accused Shahid @ Billi on 04.12.2010 after his surrender in court and proved arrest memo as Ex.PW36/A. He had moved SC No.22/13. Page 22 of 131 application for conducting TIP of accused Kamruddin on 07.12.2010. He had taken some more sealed pullindas alongwith sample seal to FSL on 09.12.2010. He had taken the prosecutrix and her friend 'S' to AIIMS on 10.12.2010 where samples of her scalp hair was taken and handed over to him in sealed pullinda which he seized vide seizure memo Ex.PW1/E. (37) PW37 is Ms. Susheel Bala Dagar, Ld. M.M. She had conducted TIP of accused Shamshad as well as Usman on 04.12.2010 and that of accused Kamruddin on 07.12.2010. She proved the record of her proceedings as Ex.PW37/A, Ex.PW37/B and Ex.PW37/C. (38) PW38 is HC Umesh Kumar. He alongwith SI Virender Prakash, HC Balbir, Const. Asgar Ali and other staff had reached near village Lakwas on Sohna Ballabhgarh Road on 06.12.2010 where accused Kamruddin was arrested. He proved arrest memo Ex.PW38/A. (39) PW39 is HC Shiv Lal. He alongwith SI Upender, HC Ranjeet had arrested accused Iqbal near T-Point, Sohna Road Sector-56, Gurgaon, on 04.12.2010 and proved his arrest memo as Ex.PW39/A. (40) PW40 is SI Asgar Ali. He was in the team alongwith SI Virender Prakash, HC Balbir, PW38 HC Umesh Kumar and other staff which arrested accused Kamruddin vide arrest memo Ex.PW38/A. (41) PW41 is HC Satish Kumar. He had produced SC No.22/13. Page 23 of 131 attested copy of PCR form filled up pursuant to calls received at telephone no.100 in Police Control Room on Channel Nos.169 and 191 on 24.11.2010. At 1.23.30 hours and 2.18.07 hours and proved those as Ex.PW41/A and Ex.PW41/B. (42) PW42 is HC Jagdish. He had taken 14 sealed pullindas and 4 sample seals to FSL on 09.12.2010. (43) PW43 is ASI Yatender Kumar. He had gone to village Utawar on 15.1.2011 for verification of documents in respect of Mahindra Pick Up vehicle no.HR-27J-0964.
(44) PW44 is HC Lala Ram. He had gone to the office of RTO, Nuh, Palwal, on 24.1.2011 for verification of power of attorney and affidavit executed by Mohd.
Sabir relating to Mahindra Pick Up van no.HR-27J-0964. He had also made inquiries regarding motorcycle no.HR-55B-1678 from RTO Office, Hatin and found that it is registered in the name of Islam Khan. He had recorded the statement of Oath Commissioner Sh. Naresh and Notary Public Sh. Rohtash.
(45) PW45 is ASI Raldhu Ram. He was posted in P.S. Dhaula Kuan and was Checking Officer having duty hours from 10 p.m. to 6 a.m. on the intervening night of 23.11.2010 and 24.11.2010. He had reached the kidnapping spot near M/s. Sharma Automobiles, Moti Bagh, on receipt of a message on his wireless at 1.30 a.m. during the night and at 2.30 a.m. he had left for Mangolpuri Industrial area wherefrom he SC No.22/13. Page 24 of 131 brought the prosecutrix to P.S. Dhaula Kuan.
(46) PW46 is Inspector Jatinder Jeet Singh. He had brought the Log Book of the Control Room South District in the month of November, 2010 and proved the recording of calls on 24.11.2010 at 1.26 a.m., 1.32 a.m., 1.40 a.m. and 2.27 a.m. (47) PW47 is SI Harish. He alongwith Const. Jaivir had reached the spot of incident near Sharma Automobiles on 24.11.2010 on receipt of DD No.3A where he met 'S' and Inspector Nipun Kumar (PW19) alongwith staff, who was already present there. From there, he had sent PW45 to Mangolpuri to bring the prosecutrix from there. He met the prosecutrix in P.S. Dhaula Kuan during the night and recorded her statement Ex.PW1/A, prepared rukka and got the FIR registered. He alongwith Const. Jaivir and lady Const. Santara (PW16) had taken the prosecutrix to Safdarjung Hospital for medical examination. The doctor had handed over three sealed pullindas and one sample seal to lady Const. Santara in his presence, which was then seized by Inspector Raj Kumari in his presence. He alongwith the prosecutrix, IO Inspector Raj Kumari and other staff had then visited both the crime spots i.e. near M/s. Sharma Automobiles, Moti Bagh and at Mangolpuri.
(48) PW48 is SI Sushil Sawaria. He alongwith IO Inspector Raj Kumari, SI Sandeep Sharma (PW52) had remained in the investigation of this case on the SC No.22/13. Page 25 of 131 night intervening between 01.12.2010 and 02.12.2010. Accused Usman and accused Shamshad were arrested in his presence from village Dhauj.
The Mahindra Pick Up van bearing vehicle no.HR-27J-0964 was located and seized in his presence at the instance of accused Shamshad. He had also remained in the investigation on 04.12.2010, on which date accused Shahid was arrested and on 05.12.2010 when the disclosure statement of accused Iqbal was recorded by the IO. Accused Kamruddin had also been arrested in his presence by the IO on 07.12.2010.
(49) PW49 is SI Upender Singh. He was the member of the team, which arrested accused Iqbal on 04.12.2010.
(50) PW50 is ASI Mangu Singh. He proved the order of ACP Vasant Vihar dated 24.11.2010 as Ex.PW50/B whereby the investigation of this case was entrusted to Inspector Raj Kumari and the relevant page of Despatch Register as Ex.PW50/A showing despatch of the order from the office of ACP.
(51) PW51 is Sh. Shaukat Ali. He is the owner of Mahindra Pick UP vehicle bearing registration no.HR-27J-0964 having purchased it in partnership with Raees from one Sabir in the year 2009 for Rs. 1,45,000/-. He deposed that the vehicle was sold by Raees after six months to Islam. He identified the vehicle from photographs Ex.PW19/A1 to Ex.PW19/A6.
SC No.22/13. Page 26 of 131(52) PW52 is SI Sandeep Sharma. He was associated in the investigation of this case alongwith IO on various dates. Prosecutrix had handed over 15 currency notes of Rs.10/- each to the IO in his presence on 25.11.2010 and on 02.12.2010 accused Usman and accused Shamshad were arrested in his presence from village Dhauj. Accused Shahid @ Billi and accused Iqbal @ Billi were arrested in his presence on 04.12.2010 and 05.12.2010 respectively. Accused Kamruddin was arrested in his presence on 07.12.2010. He is also a witness to the recovery of their clothes by the accused from their house on 09.12.2010. He had visited village Umar, District Mewat, U.P., on 11.1.2011 and made inquiries from Mohd. Sabir and Bakkal regarding Mahindra Pick Up van no.HR-27J-0964. PW32 had handed over Hard Disk containing CCTV camera footage to the IO in his presence on 29.1.2011. (53) PW53 is Sh. Rahis. He alongwith Shaukat Ali (PW51) had purchased Mahindra Pick Up van bearing registration no.HR-27J-0964 from Sabir in partnership in the year 2009 for Rs.1,45,000/-. He had sold the vehicle after about two and a half months to Islam. He had got the documents pertaining to vehicle prepared from Sabir in his presence so that he could get it released on Superdari when it had been seized by the officials of P.S. Punhana and proved the Mukhtiarnama as well as Halfnama executed by Sabir as Mark-PW17/D and SC No.22/13. Page 27 of 131 Mark-PW34/A. He had handed over the copies of these documents to the police officials, which were seized vide memo Ex.PW43/A. He expressed inability to identify the vehicle from photographs Ex.PW19/A1 to Ex.PW19/A6. He also did not identify the vehicle when it was shown to him.
(54) PW54 Sh. Mukund Nath Jha. He had produced the original case file of FIR No.309/10 u/s.379 IPC, P.S. Mujeshar, Haryana, which shows that accused Shahid @ Billi was arrested in the said FIR on 26.11.2010 and proved the Charge Sheet as Ex.PW54/A. (55) PW55 is Sh. Vijay Singh. He was Addl. DCP-I, South District, New Delhi, in March, 2011 and had accorded sanction for prosecution of accused Usman u/s.25/54/59 of Arms Act and proved Sanction Order dated 28.3.2011 as Ex.PW55/A. (56) PW56 is Inspector Raj Kumari. She is the IO of the case.
(57) PW57 Constable Mukesh Kumar. He had prepared RC No.152/21/10 (Ex.PW15/S), RC No. 153/21/10 (Ex.PW15/T) and RC No.154/21/10 (Ex.PW15/U) at the request of MHC(M) Shyam Prakash (PW15) in his presence as he (PW15) was having pain in his left hand which he writes, he being a south paw.
15. It is necessary to note here that PWs 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46 were not cross examined on SC No.22/13. Page 28 of 131 behalf of the accused. These witnesses were examined in the first fortnight of March, 2013 during which period there was complete strike of lawyers at Dwarka Courts and even the legal aid counsels were not allowed entry to the courts. Hence no legal aid counsel could be provided to the accused. Since the lawyers' strike has been declared illegal by the High Court as well as by the Supreme Court, this Court thought it disrespectful to the High Court and Supreme Court to defer the examination of these witnesses on account of lawyers' strike and hence allowed the prosecution to examine them. Later on, an appication was filed on behalf of accused Usman for recalling of PW-36, PW37, PW42, PW43 and PW45 for their cross examination, which was allowed vide order dated 14.05.2013. These five witnesses were summoned again and cross examined on behalf of accused Usman. No such application was filed on behalf of other four accused. Accused Usman too chose not to cross examine PW35, PW38, PW39, PW40, PW41, PW44 and PW46.
16. Following witnesses were examined by the accused in their defence :
(1) DW1 - He is the Nodal Officer of M/s. Vodafone Mobile Services Ltd. and had been summoned to produce customer application form of mobile no.
9050644328. He proved its customer application form as Ex.PW1/A which shows that this number was allotted in the name of Shahid s/o Sh. Fazru. He further deposed that the call detail records of the said mobile number could not be made available as SC No.22/13. Page 29 of 131 the same, being more than one year old, have already been destroyed.
(2) DW2 Sh. Zakaria, a co-villager of accused Usman. He deposed that accused Usman was lifted by police officials from his house in the evening hours on 01.12.2010 or 02.12.2010.
(3) DW3 Sh. Sohrab. He is also a co-villager of accused Usman. He deposed that accused Usman was taken by the police officials from his house on 01.12.2010 at about 8 p.m. (4) DW4 is Sh. Hazi Kasim Qureshi. He deposed that accused Shamshad was residing as tenant in his house about three years ago and one day police officials came to his house during night and apprehended accused Shamshad.
(5) DW5 is Sh. Akhtar. He is a neighbour of accused Kamruddin and deposed that about three years ago, police officials had come to the house of Kamruddin during day time and apprehended him.
(6) DW6 Sh. Mehtab. He has been Chowkidar of village Dhauj for the last 15 years and deposed that about three years ago, police officials came to their village during night time and apprehended accused Iqbal @ Billi.
(7) DW7 is Sh. Nur Mohd. He is a co-villager of accused Iqbal @ Billi and deposed that about three years ago, police officials had come to their village and took accused Iqbal alongwith them for some inquiry.
SC No.22/13. Page 30 of 131(8) DW8 is Sh. Shamshuddin. He is the neighbour of accused Shamshad and deposed that about three years ago, accused Shamshad was taken by police officials from his house during night time.
(9) DW9 is Sh. Umer Mohd. He is the neighbour of accused Kamruddin and deposed that accused Kamruddin was apprehended by police officials from his house about three years ago during day time. (10) DW10 - He is accused Usman himself. He too deposed that he was arrested from his house in village Mirpur on 01.12.2012 at about 8.30 p.m. He further stated that he had a quarrel with accused Shahid's brother in year 2010 and proved the FIR registered regarding that quarrel as Ex.DW10/A. He also stated that he was shown to the prosecutrix in the police station on 02.12.2012 who first did not identified him and later on identified him at the instance of the IO. He also stated that he was shown to the prosecutrix again in Tihar Jail before TIP was conducted. He further deposed that he did not recover any clothes during his police remand and the clothes have been planted upon him. He also stated that on 02.12.2012 and 03.12.2012 some eunuchs had come to the police station and made him to masturbate and then he was made to touch the steering and windshields of Mahinder Pick Up van. When the mobile phone stated to have been recovered from his personal search at the time of his arrest was shown to him, he denied that it is the SC No.22/13. Page 31 of 131 same mobile phone which was recovered from his personal search. (It may be noted that everything in this case had taken place in the years 2010-2011 and it appears that this witness has mentioned the year wrongly as 2012.) STATEMENT OF ACCUSED U/S 313 Cr.P.C.
17. Accused Usman admitted that he alolngwith other four accused was taken to Mewat on 09.12.2010 for recovery of clothes which they were wearing at the time of incident and the Desi Katta used to threaten the prosecutrix. He admitted that first of all, they had reached his house, then to the house of accused Shahid @ Billi in village Dhauj and from there to the house of accused Iqbal @ Billi in the same village and from there to the house of accused Shamshad @ Khutkan in the same village and from there to the house of accused Kamruddin in the same village. He however denied that anything was recovered by any of the accused. He also admitted that the prosecutrix and her friend 'S' had visited the police station on 09.12.2010 and further stated that they first did not identify them but later on identified them only at the instance of police officials. He further denied all the incriminating evidence put to him and claimed false implication.
18. Similarly, accused Shamshad @ Khutkan also denied the prosecution case. In his statement u/s.313 Cr.PC, he denied that he and the other accused were taken to their respective houses on 09.12.2010 for recovery of their clothes and Desi Katta. He also denied that the prosecutrix and her friend had come to the SC No.22/13. Page 32 of 131 police station on 09.12.2010 and had identified them. Accused Iqbal @ Billi also denied in his statement u/s.313 Cr.PC. the entire prosecution case as also their having been taken to their respective houses on 09.12.2010 for recovery of clothes and Desi Katta. According to him, the prosecutrix and her friend 'S' did not identify them in the police station on 09.12.2010 and they (accused) were shown to them by the police officials. He also claimed false implication in this case.
19. Accused Shahid @ Billi also denied all the incriminating evidence put to him. He too denied that they had been taken to their respective houses on 09.12.2010 for recovery of clothes and Desi Katta. He did not know whether prosecutrix and her friend 'S' had been called to the police station on 09.12.2010 and they both had identified all of them (accused). Accused Kamruddin @ Kamru also denied the entire case. He denied that he alongwith other four accused had been taken to their respective houses on 09.12.2010 for recovery of their clothes and the Desi Katta. However, he admitted that accused Shahid @ Billi had got recovered a light yellow colour stripe shirt and blue colour lower having white stripe from an iron almirah in his house stating that these clothes were worn by him at the time of incident and those clothes were seized by the IO. He also admitted that accused Iqbal @ Billi got recovered a light pink colour shirt and a light blue and white striped pant from a suitcase in his house stating that these were worn by him at the time of incident and those too were seized by the IO. He also admitted that accused Shamshad @ Khutkan got recovered a cream and white colour striped shirt as well as a blue and black colour striped pant and a SC No.22/13. Page 33 of 131 round neck sweater from a steel box in his house stating that these were worn by him at the time of incident and these too were also seized by the IO. He admitted that the prosecutrix and her friend 'S' had come to the police station on 09.12.2010 but stated that only he and accused Shahid were shown to them and they did not identify them.
20. Accused Usman also denied that he alongwith accused Shamshad had been apprehended on the night intervening between 01.12.2010 and 02.12.2010 in village Dhauj when they were seen riding a motorcycle. According to him, he was lifted by the police officials from his residence and his motorcycle was also seized by the police from his residence. He also denied that the Mahindra Pick Up vehicle no.HR-27J-0964 was seized at his instance. He, however, admitted that he as well as accused Shamshad were taken to AIIMS Hospital for medical examination where their samples were obtained by the doctor and then handed over in sealed condition to the IO. He also admitted that he alongwith accused Shamshad were subjected to TIP in Tihar Jail on 04.12.2010 which proceedings were conducted by Ms. Susheel Bala Dagar, Ld. M.M. and they both were correctly identified by the prosecutrix during these proceedings.
21. Similarly, accused Shamshad @ Khutkan also denied that he was apprehended on the night intervening between 01.12.2010 and 02.12.2010 in village Dhauj while he was riding on a motorcycle alongwith accused Usman. He stated that he was lifted by the police officials from his residence for inquiry and thereafter was arrested in this case. However, he too admitted SC No.22/13. Page 34 of 131 that he alongwith accused Usman were taken to AIIMS Hospital for medical examination where their samples were obtained by the doctor and handed over in sealed pullindas to the IO. He admitted that he alongwith accused Usman were subjected to TIP on 04.12.2010 in Tihar Jail which proceedings were conducted by Ms. Susheel Bala Dagar, Ld. M.M., but he did not know whether the prosecutrix had identified them during these proceedings.
22. Accused Iqbal @ Billi denied that he was apprehended from Sohna Road and stated that he was brought from his residence by Const. Hashim of Delhi Police for interrogation in this case and thereafter he was arrested. He admitted that he had refused to participate in TIP and stated that he did so as he had been shown to the witness in the police station before being put to TIP. He admitted that he alongwith accused Shahid @ Billi and accused Kamruddin were produced in AIIMS Hospital for their medical examination where their samples were obtained by the doctor and handed over to the IO in sealed condition. Accused Shahid @ Billi admitted that he was produced before Sh. Pawan Singh Rajawat, Ld. M.M., on 04.12.2010 from Neemka Jail and then was arrested in this case. He admitted that he had refused to participate in TIP. He admitted that he alongwith accused Iqbal @ Billi and accused Kamruddin were produced in AIIMS Hospital for their medical examination where their samples were obtained by the doctor and handed over to the IO in sealed condition. Accused Kamruddin denied that he was apprehended near village Lakuvas on Sohna Bahadurgarh Road, Haryana, in the evening of 06.12.2010 and stated that he was lifted from his residence for the purpose of inquiry in this case. He admitted that he had refused to SC No.22/13. Page 35 of 131 participate in TIP. He also admitted that he was taken to AIIMS Hospital for medical examination but denied that his blood sample was taken by the doctor.
23. I have heard Ms. Satvinder Kaur, the Ld. APP, Sh. Amit Srivastava, the Ld. Amicus Curie for accused Usman and Sh. Mohd. Salaam, the Ld. Counsel for remaining four accused. I have also gone through the written submission filed by Sh. Srivastava and the Ld. APP. Needless to say that I was taken through the entire oral as well as documentary evidence led on behalf of both the parties.
SUBMISSIONS OF THE PARTIES
24. Ld. APP submitted that it is established from the testimony of the prosecutrix, her friend/colleague 'S' as well as their team leader PW3 that the prosecutrix was abducted in a white colour Mahindra Pick Up vehicle on the night intervening between 23.11.2010 and 24.11.2010 after she as well as her friend 'S' was dropped near M/s. Sharma Automobiles, Moti Bagh, by their office cab and then the prosecutrix was raped by one of the abductors inside the moving vehicle when it was being driven towards Mangolpuri and at the spot at Mangolpuri, she was raped by all the five abductors on the rear portion of the vehicle one by one. She submitted that the medical evidence as well as forensic evidence also establishes gang rape of the prosecutrix. She further submitted that recovery of the Mahindra Pick Up vehicle no.HR-27J-0964, in which the prosecutrix had been abducted, recovery of the pistol used to terrorize the prosecutrix and her friend 'S' at the time of her abduction, recovery of clothes by all SC No.22/13. Page 36 of 131 the five accused which they were wearing at the time of incident, their pointing out of the spot of abduction as well as the spot where the prosecutrix was gang raped demonstrate that these five accused had abducted and gang raped the prosecutrix. She further submitted that the prosecutrix identified accused Usman and Shamshad during TIP proceedings held on 04.12.2010 in Tihar Jail and therefore, complicity of these two accused in the offence of abduction and gang rape of the prosecutrix cannot be doubted. She further argued that the other three accused, Shahid, Iqbal and Kamruddin refused to participate in TIP proceedings without any cogent ground and therefore an adverse inference need to be raised against them in this regard. She further submitted that the prosecutrix had thereafter identified all the five accused as well as Mahindra Pick Up vehicle in P.S. Dhaula Kuan. According to her, the forensic evidence produced by the prosecution also supports the prosecution case and nothing has come on record which runs contrary to the prosecution case. She submitted that all the five accused are liable to be convicted for the charges which have been framed against them.
25. Both the Ld. Defence Counsels fairly stated that they don't dispute the fact that the prosecutrix was abducted and gang raped on the fateful night. They, however, focused their arguments on their defence that the accused herein are not the assailants and they have been falsely implicated.
26. Ld. Counsel for the accused Shamshad, Iqbal, Shahid and Kamruddin submitted that the prosecution has failed to lead any cogent and credible evidence to establish the involvement of SC No.22/13. Page 37 of 131 accused in the abduction and gang rape of the prosecutrix. He submitted that there are various discrepancies regarding the identity of the accused as assailants and therefore, the prosecution case cannot be believed in this regard. He submitted that though it cannot be disputed that the prosecutrix was abducted and raped but the evidence on record shows that the accused have been falsely implicated in this case and they are not the assailants who had committed the crime. According to him, all the accused are liable to be acquitted.
27. Ld. Amicus Curie appearing for accused Usman also while not disputing that the prosecutrix had been abducted and gang raped on the night intervening between 23.11.2010 and 24.11.2010, submitted that accused Usman is absolutely innocent and has been falsely implicated in this case. At the outset, he argued that the Charge under Arms Act is not sustainable against accused Usman for the reason that PW55 had accorded sanction for prosecution of accused Usman u/s.25/54/59 Arms Act on 28.3.2011 (Ex.PW55/A) i.e. much after filing of the Charge Sheet and therefore, the sanction is illegal and the said Charge must fail in this regard. He relied upon the judgment of the High Court reported as Smt. Javitri Devi vs. State, 1971 Criminal Law Journal 1340. He further raised seven points, which according to him point towards the innocence of accused Usman. These seven points are as under :
(i) Accused Usman was not present at the spot;
(ii) Samples of the prosecutrix were not properly taken at the hospital at the time of her medical SC No.22/13. Page 38 of 131 examination and the same were tampered later on in the police station;
(iii) Accused Usman was not arrested in the manner as stated by the prosecution but was lifted from his house all of a sudden as deposed by DWs;
(iv) Samples of accused Usman were tampered;
(v) TIP of accused Usman and Shamshad was not done in a free and fair manner and the perusal of the TIP proceedings proved by PW37 also shows that the prosecutrix identified a wrong person to be the assailant and not accused Usman;
(vi) There had been hostilities between the families of accused Usman and other accused and therefore there was no possibility of accused Usman accompanying the other accused on the date of incident.
(vii)Blood of prosecutrix was planted upon the pant stated to be got recovered by Usman from his house.
28. Explaining the aforesaid points, the Ld. Amicus Curie submitted that in order to prove the presence of accused Usman at the spot of incident, the prosecution should have proved the call detail records and the location chart of the mobile phone which was recovered from the personal search of accused Usman after his arrest. It is his submission that since the IO knew that accused Usman has been falsely implicated in this case, she did not obtain the call detail records and location chart of Usman's mobile phone deliberately. He further submitted that the testimony of accused SC No.22/13. Page 39 of 131 Usman DW10 establishes the fact that there had been animosity between his family and the family of accused Shahid as Shahid's brother had got registered an FIR against Usman in Police Station Sector-55, Faridabad, Haryana, Ex.DW10/A and therefore, there was no possibility of Usman being in Delhi alongwith Shahid and other accused in the same vehicle. The Ld. Amicus Curie further submitted that accused Usman was not arrested in the manner as claimed by the prosecution but was lifted from his house on 01.12.2010 at about 8.30 p.m. which is manifest from the testimony of DW2 & DW3 and is strengthened by the fact that there is no signature of independent witness on his arrest memo. He submitted that the mobile no.9050644328, upon which the prosecution claims to have informed Usman's brother Islamuddin about his arrest, turned out to be of some other person namely Shahid vide Ex.DW1/A and the IO failed to mention the phone number, from which she had made call to Islam. He also pointed out to the relevant portion of the testimony of the IO where she has stated that she does not remember whether she had any mobile phone with her at the time of arrest of accused Usman. It is his submission that had the IO disclosed her mobile number, her location could have been traced by the accused and it would have revealed that she was not present at village Dhauj where accused Usman is claimed to have been arrested.
29. Ld. Amicus Curie further submitted that the samples of the prosecutrix obtained by PW12 are mentioned on the back of OPD Card Ex.PW12/B. Blood sample does not find mention in the list and 'blood' has been mentioned by the IO for the first time in the seizure memo prepared by her Ex.PW16/A. He further referred SC No.22/13. Page 40 of 131 to the testimony of PW12 where at one place she has mentioned that she had prepared 10 envelopes of the samples taken from the body of the prosecutrix other than the envelope in which her clothes had been kept whereas at another place she stated that she had prepared 11 envelopes of the samples collected from the prosecutrix. He also pointed that the cardboard box in which the samples of the prosecutrix had been kept, when opened in the court during cross examination of PW12, was found containing 12 envelopes. He argued that these discrepancies coupled with the fact that PW12 has nowhere stated in his deposition that she collected the blood samples of the prosecutrix, also reveal that blood sample had been later on manipulated and planted in order to implicate accused Usman falsely in this case. He further pointed out that there is no mention of miscroslide and cotton wool swab either in OPD Card Ex.PW12/B or in the seizure memo Ex.PW16/A. FSL report Ex.PW7/C mentions that three microslides Ex.iG1, Ex.iG2, Ex.iJ1 and cotton wool swab Ex.iG3 & Ex.iJ2 taken from the body of the prosecutrix were examined and the DNA profile found in those matched with that of accused. According to him, it is intriguing that none of the samples mentioned in Ex.PW12/B were examined and only the aforsaid samples which have not been mentioned in Ex.PW12/B were examined in FSL and the DNA profile extracted therefrom matched with those of the accused. According to him, in view of the aforesaid serious discrepancies, no reliance can be placed upon the DNA report Ex.PW7/C.
30. He submitted that the manipulation in the samples of the prosecutrix is also evident from the fact that 12 envelopes found in the cardboard box were not found bearing signature or SC No.22/13. Page 41 of 131 official seal of PW12 and were not having any adhesive material whereas PW12 had deposed that the envelopes had been sealed by dressing tape all around and she had put her signature on all sides of the envelopes which were then kept in a big box which also was sealed with adhesive tape and signed by her. He also pointed out that PW12 has further stated that she does not know who put the seal of Safdarjung Hospital on the red colour sealing wax which was found on the cardboard box and therefore the factum of sealing all the samples also is shrouded in mystery.
31. Ld. Amicus Curie further argued that it is not clear from the evidence led by the prosecution as to how the panty worn by the prosecutrix at the time of incident reached the doctor who medically examined her. He submits that though the prosecutrix has deposed that after she was raped in the cabin of the vehicle, she had put on her jeans but not the underwear as it was not in a position to be worn and the said underwear was used by the accused several times for cleaning her vagina while she was raped in the rear portion of the vehicle yet she nowhere states that she had brought this panty alongwith her from the spot where she was raped and handed over the same to the doctor. He pointed out that even the doctor PW12 has not deposed that the prosecutrix handed over her panty to her. According to him, this panty has also been planted upon the accused. He pointed out to the statement of accused Usman recorded u/s.313 Cr.PC where he stated that on 02.12.2010 or 03.12.2010, some eunuchs had come to the police station and made him to masturbate, arguing that the semen ejaculated by accused Usman in the aforesaid process was planted upon the aforesaid underwear of the prosecutrix to create SC No.22/13. Page 42 of 131 an evidence against the accused. He further drew attention of the court to the testimony of the IO where she had deposed that the clothes of the prosecutrix were kept in a yellow colour envelope which had been sealed with the seal of CMO and its mouth closed by a transparent tape. However, when the envelope containing the undergarment of the prosecutrix was shown to the IO, she admitted that the envelope was having no seal and its mouth was not having any tape and the envelope was of white colour. He has further submitted that both PW12 as well as the IO deposed that the clothes of the prosecutrix were kept only in one envelope but as noted hereinabove, the clothes were found to have been kept in two separate envelopes. According to him, these discrepancies in the testimony of the two material witnesses of the prosecution unerringly point out to the fact that the samples have been manipulated.
32. The Ld. Amicus Curie also argued that there is contradiction in the testimony of MHC(M) HC Shyam Prakash (PW15) and HC Dheer Singh (PW31) regarding the manner of preparing of the RC. According to him, both claimed that the RC Ex.PW15/R is in his handwriting and bearing his signature and there is same confusion regarding RC Ex.PW15/U. He further submitted that the acknowledgment received from the FSL does not indicate that the sample seal had also been deposited in FSL which fact also demonstrates that there has been tampering of the samples.
33. According to the Ld. Amicus Curie, there has been tampering in the clothes and other samples of the accused also. In SC No.22/13. Page 43 of 131 this regard, he pointed out that the medical examination of accused Usman was conducted by PW9 and that of accused Shamshad conducted by PW10 but the FTA cards of both the accused were found in a single envelope, which could not have been done by mistake only. He further submitted that when the prosecutrix has clearly deposed that she neither had bleeding from any part of her body nor received any injury on any of her body part during the incident of rape, how the blood of the prosecutrix came to be noticed on the pant of the accused Usman. In this regard, he also referred to the testimony of PW12, who has deposed that neither any bleeding nor any external injury was noticed on the body of the prosecutrix. The Ld. Counsel further argued that the identity of the accused by PW2 during the course of her testimony in the court cannot be accepted for the reason that she was not called upon to identify the accused in TIP and that she could not have got sufficient time at the time of incident to notice the facial features of the assailants and to remember their facial details. He further stated that the identity of accused Usman by the prosecutrix during TIP on 04.12.2010 is also faulty for the reason that the Ld. M.M. did not verify the identity of the prosecutrix before conducting the TIP and did not ask her whether she had seen the accused before TIP or not. In this regard, he relied upon the judgment of Bombay High reported as Rakesh Harilal Kahar vs. State of Maharashtra, 2007 Crimnal Law Journal NOC 99 Bom. and judgment of the Supreme Court report as Somappa Vamanappa Madar & ors. vs. State of Mysore, AIR 1979 SC 1831. He further submitted that even during the TIP, the prosecutrix failed to identify the accused Usman correctly as she had stated that accused Usman is standing fourth from left SC No.22/13. Page 44 of 131 whereas it was another UTP namely Ashok s/o Raj Kishore standing at that position and the accused Usman was standing on fifth position from left. It is thus submitted that the identity of the accused Usman has not been established by the prosecution. Ld. Amicus Curie also argued that the prosecution has failed to prove that the country made pistol recovered at the instance of accused Usman was the same pistol which was used at the time of commission of offence. He submitted that when the said pistol was shown to PW2, she deposed that it is not the same which was pointed towards her at the time of abduction of the prosecutrix. He argued that it is highly improbable that the prosecutrix could have seen the butt of the pistol when the same had been pointed towards her.
34. In rebuttal, the Ld. APP refuted all the aforesaid argument raised by the Ld. Amicus Curie for accused Usman. She submitted that there does not remain any doubt regarding the identity of accused Usman as he has been correctly identified by the prosecution during TIP proceedings held in Tihar Jail on 04.12.2010 and then again in the police station on 09.12.2010 by her as well as her friend PW2. She further submitted that accused Usman has mischievously denied that the black colour mobile phone of make Nokia no.1650 shown to him during the course of his testimony as DW10, does not belong to him and it is not the same phone which was recovered from his personal search after his arrest. She submits that the details of this mobile phone have been duly mentioned in the personal search memo Ex.PW48/B which was prepared immediately after the arrest of accused and also in the Case Diary of 02.12.2010 which was duly signed by the SC No.22/13. Page 45 of 131 Ld. M.M. on 03.12.2010 and thus there being no scope of its being tampered or manipulated. She would argue that since the accused has disowned the said mobile phone, he cannot be heard to say that his location could have been ascertained by obtaining the call detail records and location chart of the same. So far as the TIP is concerned, the Ld. APP submitted that even as per the judgment relied upon by the Ld. Amicus Curie in this regard, it is not mandatory for the Ld. M.M. to ask the prosecutrix, before conducting TIP, whether she had any opportunity to see the suspect or his photograph any time before that day. She further argued that even otherwise also, the Ld. Amicus Curie has failed to show that the prosecutrix had any opportunity to see the accused at any time before the TIP was conducted on 04.12.2010. According to her, if the accused had been shown to the prosecutrix prior to TIP, he would have stated so to the Ld. M.M. when he was asked as to whether he wants to participate in TIP. At that time, he did not raise any objection and even he did not raise any such objection at any time during investigation or during trial of the case and therefore, he cannot be heard to question the fairness of the TIP.
35. Ld. APP further submitted that no cogent material has been produced to show that there was any enmity between accused Usman and Shahid @ Billi. According to her, the document Ex.DW10/A produced by accused Usman during the course of his testimony shows that the FIR No.50/2010 had been registered against accused Usman and accused Kamruddin alongwith two more persons on the complaint of accused Shahid's brother Shakir on 04.2.2010, but this does not mean that there SC No.22/13. Page 46 of 131 was any animosity between accused Usman and accused Shahid. She further submitted that accused Usman and accused Shamshad were first to be arrested in this case and pursuant to the disclosure statement of accused Usman, it came to be known that accused Shahid, accused Iqbal and accused Kamruddin are also involved in the incident and further that accused Shahid @ Billi had surrendered before Faridabad Court on 26.11.2010 in an old case and was lodged in Neemka Jail, Ballabhgarh, Faridabad. She submits that the knowledge of accused Usman regarding these facts and his disclosure about the same show unerringly that he was one of the assailants and has not been falsely implicated in this case as claimed by him. She further submits that immediately after arrest of accused Usman in this case, the information about his arrest was given to his brother Sh. Islamuddin on his mobile no. 9050644328, which fact is clearly mentioned in the Case Diary of 02.12.2010, duly certified by the Ld. M.M. on 03.12.2010 and therefore the evidence of DW2 & DW3 to the effect that accused Usman was lifted from his house on 01.12.2010 is a total lie and cannot be taken into consideration.
36. It was further submitted by Ld. APP that the document Ex.PW2/A which is a 'medical examination report for sexual exploitation', clearly shows at Srl. No.15 that the blood, urine, nail scrapping, hair, vaginal swab etc. of the prosecutrix were taken at the time of her medical examination and therefore the contention raised on behalf of accused Usman that the blood sample and vaginal swab of the prosecutrix had not been taken at the time of her medical examination does not hold any water. The Ld. APP submitted that PW12 has deposed in her examination in chief and SC No.22/13. Page 47 of 131 reiterated in her cross examination that she had prepared various slides of vaginal secretion and vaginal/vaginal discharge of the prosecutrix and no suggestion has been given to her that she did not obtain blood sample or vaginal swab of the prosecutrix. Further submission is that mention of blood sample of the prosecutrix in seizure memo Ex.PW16/A also falsifies the contention of the Ld. Amicus Curie. She submitted that the discrepancy in the number of envelopes prepared by PW2 containing the samples of the prosecutrix does not effect the prosecution case for the reason that the envelopes had been sent to FSL on 26.11.2010 i.e. much before the arrest of the accused and at that time it was not known who would be the assailants and therefore, there was no reason or occasion for manipulation in the samples of the prosecutrix. She argued that the submissions of the Ld. Amicus Curie in this regard do not hold any water for the reason that the number of the exhibits seized by the doctor tally with the actual number of exhibits mentioned in the seizure memo Ex.PW16/A and that the actual number of exhibits produced in the court during the course of testimony of various witnesses.
37. It is further submission of the Ld. APP that it is a fact that the blood stains were found on the pant of the accused Usman @ Kale and the police could not have resorted to such a stupid thing of planting blood upon his pant knowingfully well that the prosecutrix has not mentioned in any of her statements that she had bled during the incident. She submits that probably prosecutrix may have had some bleeding on account of repeated sexual assault by five accused and the accused Usman got blood stains on his pant during the rape act but both the prosecutrix as SC No.22/13. Page 48 of 131 well as accused remained oblivious of such bleeding. She further submitted that the fact that there had been no tampering in the exhibits before sending them to FSL is evidenced from the testimony of PW7, who had examined these exhibits in the FSL and who deposed that seals of all the parcels were intact and tallied with the forwarding letter. The Ld. APP also submitted that the arguments raised on behalf of accused Usman that the red colour panty of the prosecutrix had been planted, is without any basis as the same had been taken into possession by the doctor who conducted medical examination of the prosecutrix soon after the incident and was properly sealed at that time. She further submitted that there is no discrepancy in preparation of the Road Certificates vide which the exhibits were sent to FSL and the accused have failed to point out any material on record suggesting that there had been tampering in the case property while in the Malkhana. With regard to 'Katta' stated to have been recovered at the instance of accused Usman, it is submitted that the same has been duly identified by the prosecutrix as she was in a better position to identify the same for the reason that it continued to be pointed out towards her even in the moving vehicle after her abduction. According to her, the failure of PW2 to identify the Katta is immaterial and does not effect the prosecution case.
ANALYSIS OF EVIDENCE & DISCUSSION RE:-ABDUCTION AND GANGRAPE OF THE PROSECUTRIX, HER RECOVERY AT MANGOLPURI, REGISTRATION OF FIR AND PREPRATION OF SITE PLANTS OF THE CRIME SPOTS.
SC No.22/13. Page 49 of 13138. The prosecutrix appearing as PW1 has deposed that she was employed with M/s. Convergys India Pvt. Ltd., Gurgaon, and had office timings on 23.11.2010 from 3 p.m. to 12 midnight. She used to go to the office and return by office cab but did not remember from which office cab had she left office on the night intervening between 23.11.2010 and 24.11.2010. She deposed that she had left office in the office cab at about 12.40 a.m. and was sitting on the rear seat. Her friend 'S' was sitting on the seat in front of her. The cab dropped them near M/s. Sharma Automobiles at about 1.00/1.15 a.m. and they started walking towards their house. They had covered just a distance of 2 to 3 meters when a white Pick Up van came from their behind on their right side, three persons got down from the front of the Pick Up van and grabbed her. One of those three persons showed a pistol like article to her. She and her friend 'S' started shouting 'Help - Help' but no one came to their help. Those three persons pulled her inside the front portion of Pick Up van, which was then reversed and driven towards Dhaula Kuan. Those persons had tried to pull 'S' also inside the Pick Up van but she struggled hard to free herself and thus she (prosecutrix) alone was pulled inside the vehicle and 'S' succeeded in escaping. She further deposed that while in the front portion of the Pick Up van, the person sitting on her right side was trying to cover her mouth as well as face with his hands and the person sitting on her left side was showing her a pistol, at that time she was carrying two mobile phones, one of which was in the right side pocket of her jeans and the other in its left side pocket. One of the phones rang and when they heard the phone ring, the persons sitting on her right side and left side searched her pocket. The person on the right side found one of her SC No.22/13. Page 50 of 131 phone having no.9871511790 and handed over the same to the person sitting on her left who kept the same on the Dash Board of the Pick Up van after switching it off. It was a simple Nokia mobile phone and was taken out from her right side jeans pocket. The other mobile phone which was in her left side pocket was ringing continuously but she had kept her hand in said pocket and kept on pressing the reject button. She somehow managed to take out the said mobile phone from her left side jeans pocket and kept it in the pocket of her jacket. She thought that if she answers the call, her friend and police would be able to trace the call, so she pressed the answer button and kept it like that.
39. She further deposed that while the vehicle was being driven, the person sitting on her left side tore off of her underwear, removed her jeans and started raping her. After sometime, the vehicle was stopped where there were several trucks parked. The three persons, who were in the front of the vehicle, were talking to each other and also to the person, who was in the rear portion of the Pick Up van, but she could not see at that time as to how many persons were there in the rear portion of the van. She could not understand what they were talking to each other in Hindi language as she knew Hindi language very little. They stopped at that spot for only 2 to 3 minutes and then again drove the vehicle. She saw a board on which 'Mangolpuri' was written. After driving round and round, they stopped at one place, which was a kind of dump area and told her to get down from the Pick Up vehicle. Then they took her to the back portion of the Pick UP vehicle where there was a mattress lying on the floor. Five persons including the three sitting with her in the front portion of the vehicle raped her on that SC No.22/13. Page 51 of 131 mattress one by one. When she asked them to stop, one of those persons slapped her. They were saying her 'Chup - Chup' (Keep quiet - Keep quiet). After raping her, they again drove the vehicle towards main road and at that time she was sitting at the bakc with two persons. The vehicle was stopped at a place and she was told to get down. After she got down, they drove away the vehicle. She looked at the back portion of the vehicle to note down the registration number of the same but there was no number plate on the same. There were some decoration made of paint on the rear portion of the vehicle. When she took out her mobile phone from the pocket of jacket, which was in answering mode, she found that her Boss Niloy Pramanik was on the line and she talked to him. He had already heard and understood what had happened to her as the mobile was on 'hold' mode. She told Niloy that she would talk to her friend 'S' and ended the call and made a call to 'S' from her mobile phone. She could not tell 'S' exactly as to where she was present at that time. 'S' told her that the police has advised that she should call telephone no.100. At this, she called telephone no. 100 and asked the person on the other side of the call if he could speak in English. The call was initially attended by a lady police official and thereafter by a male police official and both spoke to her in English. They advised her to go around and point some mark of identification of the area. She moved from that place while she was talking to them and saw a house whereupon some address was written which was as 'Industrial Area Mangolpuri' and she informed the police about the said address who told her that the police van would reach there. After some time, police van came there and took her to P.S. Mangolpuri from where she was taken to P.S. Dhaula Kuan where her several friends and office SC No.22/13. Page 52 of 131 staff as well as Mizo welfare leaders were present.
40. PW2 namely 'S', the friend of the prosecutrix, has deposed that she as well as the prosecutrix was working with M/s. Convergys, Gurgaon, and were residing in two separate rooms in the same building at Moti Bagh as tenants. On 24.11.2010, their shifts was from 2.30 p.m. to 12 midnight. They left office in the office cab at about 12.40 a.m. on the intervening night of 23.11.2010 and 24.11.2010 which dropped them on the Highway around 1.05/1.10 a.m. Their house was at a walking distance of 10 minutes from that place. While they were walking towards their house in the open space, a white colour vehicle came from behind which was a Pick Up vehicle and stopped just ahead of them. There were three boys in front of the vehicle and two boys in the rear portion. All the five got down from the vehicle and her friend, who was nearer the vehicle, was grabbed by the boys, who had got down from the front portion of the vehicle. They started screaming but not too loudly as they were scared for the reason that one of those boys was armed with a gun which appeared to be local made. When she attempted to save her friend, who was grabbed by those persons, the boy who was holding the pistol pointed the same towards her head and she started screaming. She held her head to save it and started moving away. The boys did not follow her and she ran away from that spot. She just watched her friend being taken away in the front portion of the vehicle and could not do anything. While she was screaming one boy from their neighbourhood came out and she informed him about the incident. That boy could see the vehicle so he tried to follow it by running after it. She informed police at telephone no.
SC No.22/13. Page 53 of 131100 from her mobile no.9911000863. Thereafter police came to the spot which was near M/s. Sharma Automobiles. She further deposed that after about 45 minutes, she received a call from her friend i.e. prosecutrix on her mobile phone who informed her that she was raped by all those five boys who had taken her away and had been dropped near some industrial area but was not able to confirm the location. So she advised her to call police at telephone no.100. Thereafter she met the prosecutrix in the morning of 24.11.2010 at P.S. Dhaula Kuan. She further deposed that the vehicle in which her friend was taken away was Mahindra Pick Up vehicle, white in colour and its top on the rear was open. There were some flowers made of green colour paint on the side of the vehicle and the number was HR-27J-0964 which she had seen when she had identified the vehicle at Dhaula Kuan Police Station on 09.10.2010. She identified the said vehicle during the course of her testimony.
41. Sh. Niloy Pramanik has been examined as PW3. He deposed that he has been working with M/s. Convergys India Services Pvt. Ltd. as a Team Leader for the last six and a half years. The prosecutrix was working in his team as Sr. Customer Care Officer since last two years. He deposed that on the intervening night of 23.11.2010 and 24.11.2010, it was his off and prosecutrix was working on that day from 3 p.m. to 12 midnight. He received a call from his Operation Manager at about 1 a.m. that the prosecutrix has been lifted by some boys from the place where she was dropped by office cab. He tried to contact the prosecutrix from his mobile phone no.9911611386 on her mobile phone. The mobile phone of the prosecutrix was ringing but she did not pick it SC No.22/13. Page 54 of 131 up. He continued calling her and finally call got connected but nobody answered the call by saying 'Hello!' although the line was on. He could hear some male voices and a female voice. He could also hear the sound of air in a moving vehicle. He was continuously saying Hello - Hello. He also heard the cries of a female who was saying "please let me go". The female voice was that of the prosecutrix. He also heard male voice saying "Tu Ro Kyon Rahi Hai, Hamara Kaam Nipat Jayega To Tumhe Chod Denge". He also heard a lot of body movement sound and it continued for about 20 - 25 minutes, during which period his mobile phone remained connected with mobile phone of the prosecutrix. After sometime, the line was disconnected. Then he received a call from the prosecutrix. She was crying and told him that she has been raped by five persons. She told him that she is somewhere in Mangolpuri and then line was disconnected. He called her again from his mobile phone and she told him that she was dropped at Mangolpuri by the vehicle, in which she was picked up from the dropping point of office cab. She further told him that she would call him later as she has seen PCR van thereafter he immediately left for Dhaula Kuan police station after informing his Manager about the aforesaid facts. When he reached P.S. Dhaula Kuan in the early morning on 24.11.2010, the prosecutrix was already present there. His Sr. Manager, Operation Manager and Corporate Manager were also present there. He saw prosecutrix's friend 'S' also in the police station. After sometime, the prosecutrix came out of a room in the police station alongwith police officials and started weeping on seeing him. He alongwith the aforesaid Managers accompanied the prosecutrix to the hospital. After the medical examination, the prosecutrix was again SC No.22/13. Page 55 of 131 brought to the police station. He deposed that the sister of the prosecutrix had also accompanied her to the hospital and also returned alongwith her from there.
42. Prosecutrix's sister has been examined as PW13. She deposed that she alongwith prosecutrix was residing in a room on the first floor of House No.11/78, Moti Bagh, New Delhi. On 24.11.2010 she received a call from her sister (prosecutrix) saying that she had been abducted by five men and has been left at some place after being raped. Prosecutrix also told her that she has informed police and the police would be reaching there to take her. Prosecutrix was crying while she was narrating this to her. At that time, she was in her office at Convergys, Gurgaon. She informed her Manager about the incident and immediately left for her home in Moti Bagh in the company vehicle and from there she went to P.S. Dhaula Kuan where she found her sister i.e. prosecutrix and few of her friends from Mizo. She alongwith her sister and 'S' and other friends went from the police station to Safdarjung Hospital for medical examination of the prosecutrix. She deposed that after the medical examination of the prosecutrix, her clothes were taken away by the doctor and therefore, she went back to her room, brought new clothes and gave those to her sister i.e. prosecutrix to wear. From the hospital, they again went back to the police station and from there to Mizoram House. She also deposed that she alongwith prosecutrix and her friend 'S' had gone to Mangolpuri where the prosecutrix pointed out the spot where she had been raped and accordingly site plan was prepared.
SC No.22/13. Page 56 of 13143. PW14 was the Duty Officer in P.S. Dhaula Kuan in the night intervening between 23.11.2010 and 24.11.2010 from 12 midnight to 8 a.m. He deposed that at about 1.30 a.m. a call was received to the effect "Behind Moti Bagh Gurudwara, Sharma Auto Service Centre, in Matador tempo, there were the boys who had taken away one girl after pushing her in the vehicle on the point of weapon and then had gone towards Ring Road". He recorded information as DD No.3A and conveyed the information to PW47 SI Harish through Const. Sandeep (PW30) for necessary action. PW19 Inspector Nipun Kumar (A.T.O.) was also informed about the said incident. He proved the copy of DD as Ex.PW14/A. He had also registered FIR Ex.PW14/B, on the basis of rukka, which was handed over to him by PW47 at 4.30 a.m. He proved his endorsement on the rukka as Ex.PW14/C. He also proved certificate u/s.65B of the Evidence Act regarding authenticity of the computerized copy of the FIR as Ex.PW14/D.
44. PW30 had taken copy of DD No.3A from the police station and handed over the same to PW47 at the gate of the police station.
45. PW41 HC Satish proved the attested copy of PCR forms filled up pursuant to the calls received at telephone no.100 in Police Control Room of Channel Nos.169 and 191 on 24.11.2010 at 1.23.30 hours and 2.18.07 hours as Ex.PW41/A & Ex.PW41/B.
46. PW46 Inspector Jatinder produced the Log Book maintained in the Control room in the month of November, 2010. He deposed that as per the Log Book, a call had been received at SC No.22/13. Page 57 of 131 telephone no.100 at 1.26 a.m. on the night intervening between 23.11.2010 and 24.11.2010 to the effect that some boys in a Matador Tempo vehicle dragged a girl into the vehicle on the point a weapon near Sharma Automobiles Centre, behind Gurudwara, Moti Bagh, and had gone towards Ring Raod. He proved the copy of relevant page as Ex.PW46/A. He also deposed that at 1.32 a.m. Night GO was directed to reach the spot and at 1.40 a.m. another call was received to the effect that "prosecutrix aged 29 years was residing as a tenant in village Mochi Gaon and was working in Call Centre at Noida/Gurgaon. She is from North East. She was taken in a Tata Ace vehicle. She does not know Hindi. There is language problem.". He further deposed at 2.27 a.m. another call was received and recorded in the Log Book that "a girl has been traced at Mangolpuri, CP has arrived there and we have also sent the CP to the spot." He proved the relevant page of the District Management Register pertaining to South District Control Room as Ex.PW46/B.
47. PW19 Inspector Nipun Kumar was the first police officer to reach the spot wherefrom the prosecutrix had been abducted. He deposed that on the night intervening between 23.11.2010 and 24.11.2010. He alongwith Const. Thakur Dass and Operator Const. Kalu Ram was on night patrolling duty in sub division Vasant Vihar. At 1.23 a.m. he received information from S-50 Control Room Operator about a call regarding abduction of a girl by some boys armed with some weapon from near Sharma Automobiles, Ring Road, Mochi Gaon. Accordingly, he proceeded towards that direction in his official gypsy and on the way the Duty Officer of P.S. Dhaula Kuan, SI Ramesh Chand (PW14) confirmed SC No.22/13. Page 58 of 131 this information. Upon reaching the spot while he was making inquiry, PW47 SI Harish reached there. A girl named 'S' met them who told them that her colleague i.e. prosecutrix aged about 25 - 30 years was forcibly picked up in a Tata Tempo Pick Up van by three to four young boys and the said Pick Up van had gone towards Dhaula Kuan side. He flashed this message through the Control Room and in the meantime, 'S' received a call on her mobile phone in his presence and informed him that the prosecutrix has been left by the abductors. While the call was put on hold, he asked 'S' to confirm from the prosecutrix about her location. Prosecutrix told 'S' that she was in Mangolpuri. He told 'S' to tell the prosecutrix to make call at telephone no.100 and reveal her location. In the meanwhile, he also called up the Police Control room and apprised them about the said development. The prosecutrix has been left by abductors in Mangolpuri area and the nearby PCR be alerted about the same. After about ten minutes, he got news that the prosecutrix has been located by police. Thereafter he sent the Night Checking Officer ASI Raldhu Ram (PW45) to bring the prosecutrix to P.S. Dhaula Kuan. Accordingly, prosecutrix was brought to P.S. Dhaula Kuan and was handed over to PW47 SI Harish, who took her to Safdarjung Hospital for medical examination.
48. PW22 SI Sudhir Rathi, who was posted in P.S. Mangolpuri and was on night emergency duty on the night intervening between 23.11.2010 and 24.11.2010. At about 2.25 a.m., the Duty Officer handed over to him the DD No.15B to the effect that a girl had been gang raped at T-2/190, Industrial Area Phase-I, Mangolpuri. He alongwith Const. Sumit reached the SC No.22/13. Page 59 of 131 aforesaid spot and met prosecutrix, who told him that she was lifted by five persons from near M/s. Sharma Automobiles, Moti Bagh and was gang raped by them. He informed PW19 about the same on telephone. Thereafter, PW45 reached the spot and he handed over the prosecutrix to him.
49. PW47 SI Harish deposed that on 24.11.2010 on receipt of DD No.3A, he alongwith Const. Jaivir reached the aforesaid spot of incident near M/s. Sharma Automobiles, Satya Niketan, near Gurudwara and met the girl named 'S'. PW19 alongwith Driver Const. Thakur Dass and Operator Kalu Ram besides 7 to 8 persons were present at the spot. 'S' told them that she had received a call on her mobile no.9999000863 from her friend i.e. prosecutrix saying that she is in Mangolpuri. She also told them that she has asked the prosecutrix to make a call at telephone no.100. He made inquiries from public persons present at the spot but nobody was aware about the incident. Thereafter he received a call from Duty Officer saying that the information has been received that the prosecutrix is in Mangolpuri. He directed PW45 ASI Raldhu Ram to go to Mangolpuri and bring the prosecutrix from there. At about 3 a.m. in the night, PW45 informed him on phone that he has brought the prosecutrix to police station. Accordingly, he also reached P.S. Dhaula Kuan where he found the prosecutrix present and recorded her statement Ex.PW1/A. He prepared rukka Ex.PW47/A and got the FIR registered. After registration of FIR, on his request, the investigation was marked to Inspector Raj Kumari. Meanwhile he alongwith Const. Jaivir and lady Const. Santara (PW16) took the prosecutrix to Safdarjung Hospital for medical examination. The sister of the prosecutrix also accompanied them SC No.22/13. Page 60 of 131 to the hospital.
50. PW45 has deposed that on the night intervening between 23.11.2010 and 24.11.2010 he was posted as Checking Officer in P.S. Dhaula Kuan and his duty hours were from 10 p.m. to 6 a.m. At about 1.30 a.m. in the night, he came to know from a message on his wireless set that a girl was taken away by some persons from near M/s. Sharma Automobiles, behind Gurudwara, Moti Bagh, New Delhi. Accordingly he reached the spot and found PW47 and PW19 present there. At about 2.30 a.m. On the direction of PW19 he reached Mangolpuri Industrial Area Phase-I, where he met PW22 SI Sudhir Rathi. The prosecutrix was also present there. He brought the prosecutrix to P.S. Dhaula Kuan and handed over her to PW47 SI Harish.
51. PW56, IO Inspector Raj Kumari has deposed that she was posted at PS Vasant Kunj and was on night duty in the intervening night of 23rd and 24th November, 2010. At about 4 am, the duty officer asked her to report in PS Dhaula Kuan as a call of rape had been received there. Accordingly she reached PS Dhaula Kuan at about 5.15 am. There the duty officer handed over to her the rukka and copy of FIR in this case as the investigation had been entrusted to her. Thereafter she alongwith PW48, PW52, ASI Mukti and other staff reached Safdarjung Hospital where medical examination of the prosecutrix was in progress. PW16 lady constable Santra handed over to her three sealed pullindas and one sample seal in presence of SI Harish (PW47) which she seized vide memo Ex. PW16/A. After the completion of medical examination of prosecutrix, she alongwith the aforesaid staff, SC No.22/13. Page 61 of 131 prosecutrix, her sister and her friend 'S' reached the spot near M/s. Sharma Automobiles, near Nanak Pura Gurudwara, Moti Bagh where she prepared site plan Ex. PW56/A at the instance of prosecutrix and her friend 'S'. Then she left some staff members Inspector Nikunj, Inspector Balram (PW46) etc. at the spot to gather intelligence and herself alongwith remaining staff reached PS Dhaula Kuan where she deposited the case property in the malkhana. She recorded statements of prosecutrix, her sister and her friend 'S'. Meanwhile prosecutrix's friend Niloy and cab driver Kishan, who had dropped them at the spot near M/s. Sharma Automobiles in the office cab, reached the police station and she recorded their statements. On the same day i.e. 24.11.2010, she alongwith staff reached PS Mangolpuri wherefrom she collected the relevant DD entry and on the basis of its contents, identified the spot where prosecutrix had been dumped after the gang rape. Prosecutrix had not accompanied them as she was in a state of trauma. PW22 SI Sudhir Rathi of PS Mangolpuri had accompanied her to the spot. They tried to locate the Mahinda pick up van, as described by prosecutrix in her statement, but could not find it. Thereafter she alongwith staff returned to the police station Dhaula Kuan.
52. She further deposed that on 25.11.2010, she alongwith PW48, PW52 and other staff reached Mizoram House from where they took prosecutrix alongwith them and reached Mangolpuri Indl. Area where the prosecutrix showed them the spot where she was gang raped inside the vehicle and the spot where she was dumped later on. She prepared a detailed site plan Ex. PW56/B at the instance of prosecutrix and then they all returned to SC No.22/13. Page 62 of 131 PS Dhaula Kuan.
53. PW50 ASI Manga Singh proved the order dated 24.11.2010 of ACP, Vasant Vihar as Ex. PW56/B vide which the investigation of this case was transferred to PW-56 and also the relevant page of dispatch register maintained in the office of ACP as Ex. PW50/A, vide which the said order was dispatched vide No. 2207.
54. A bare perusal of the abovenoted testimony of the witnesses aforementioned, clearly manifests that within few moments of the prosecutrix and her friend 'S' having been dropped near M/s. Sharma Automobiles, Moti Bagh, New Delhi, by their office cab being driven by PW26, a Pick Up van stopped near them and the occupants of the vehicle being five in number dragged the prosecutrix into the front portion of the vehicle and drove towards Dhaula Kuan. 'S' made call at telephone no.100 giving the information about the incident, pusuant to which police officials PW19, PW45 & PW47 reached the spot. It is also clear that the prosecutrix had been raped by one of the assailants in front portion of the vehicle, which was being driven and then by all the five occupants of the vehicle after the vehicle was stopped at secluded place in Mangolpuri industrial area. PW3 had made repeated calls on the mobile number of the prosecutrix and after disconnecting the calls initially, the prosecutrix pressed 'yes' button but did not respond, as a result of which as the call was on, PW3 heard the cries of prosecutrix and whatever her assailants were telling her etc. After being dumped at Mangolpuri, the prosecutrix first talked to PW3 and then to 'S' apprising them SC No.22/13. Page 63 of 131 about her plight. She then made call at telephone no.100, pursuant to which PW22 reached there in PCR vehicle and located her. Thereafter PW45 reached there and took her to P.S. Dhaula Kuan.
55. It may be noted here that nothing contrary could be elicited in the cross examination of any of the aforesaid witnesses though they were subjected to extensive cross examination by different Counsels appearing for the accused. The deposition of these witnesses is in sync with each other and corroborate each other's version. Therefore, there remains no doubt about the fact that the prosecutrix was abducted in a Pick Up vehicle by five persons and was later on subjected to gang rape by them.
56. It was perhaps for this reason that both the Ld. Counsels appearing for the accused, submitted at the outset that the fact that the prosecutrix was abducted and gang raped, is not disputed.
57. This leads me to the crucial issue as to whether the accused herein are the culprits, as claimed by the prosecutrix or they have been framed falsely in this case as claimed by them.
RE:-ARREST OF ACCUSED USMAN & SHAMSHAD
58. As per the case of the prosecution, accused Usman and accused Shamshad were the first to be arrested on the night intervening between 01.12.2010 and 02.12.2010 when they were found travelling at a motorcycle on the road outside village Dhauj.
SC No.22/13. Page 64 of 131It is the case of the prosecution that a secret information has been received regarding identity and location of these two accused.
59. PW48 SI Sushil Sawaria, PW52 SI Sandeep Sharma and PW6 IO Inspector Raj Kumari are the witnesses to the arrest of these two accused. PW48 was posted in P.S. Vasant Vihar at that time. He deposed that he went to P.S. Vasant Vihar from DCP Office, Dhaula Kuan, where the other teams prepared for investigation of the case had gathered. The DCP briefed all the teams and thereafter he alongwith IO (PW56) and members of other teams and the secret informer reached village Dhauj Faridabad, Haryana. They stopped on the main road in village Dhauj. The secret informer informed the IO that the two accused involved in the rape incident would pass by that road on a black colour Hero Honda CD Dawn motorcycle which would be without any number plate. Accordingly, they took their position around the spot. At about 2 a.m. the secret informer gave specific signal to them and they saw a motorcycle coming towards them from the side of village Dhauj. They overpowered the two persons riding the motorcycle. The driver of the motorcycle disclosed his name as Usman @ Kale whereas the pillion rider disclosed his name as Shamshad @ Khutkan. The IO Inspector Raj Kumari interrogated both of them and arrested them vide arrest memo Ex.PW48/A and Ex.PW48/D. Their personal search was taken vide memo Ex.PW48/B and Ex.PW48/E respectively. PW56 recorded their disclosure statements Ex.PW48/C and Ex.PW48/F respectively. The motorcycle was seized vide seizure memo Ex.PW48/G. The faces of both the accused were muffled and then they all proceeded towards village Tai for locating the Mahindra Pick Up van, as SC No.22/13. Page 65 of 131 disclosed by them in their disclosure statements.
60. In this regard, PW52 and PW56 have deposed on the similar lines as done by PW48. I do not see any contradiction between testimonies of these witnesses with respect to factum of arrest of the two accused Usman and Shamshad in the manner as stated by PW48. A suggestion has been given to PW48, in his cross examination conducted on behalf of accused Usman that accused Usman was not arrested from the said spot in the manner stated by him and that the accused was arrested from his residence on 01.12.2010, which he denied. In the cross examination conducted on behalf of accused Shamshad, he deposed that accused Shamshad was arrested at about 2.45 a.m. and denied that the said accused was not arrested at the aforesaid time. No such suggestion has been given to PW52. PW56 has denied in her cross examination that accused Shamshad was lifted from his house on 02.12.2013 at 2 p.m. in presence of many villagers. She also denied that accused Usman was lifted from his house in the evening of 01.12.2010.
61. Since all the aforesaid three witnesses have withstood the detailed cross examination reiterating whatever they had stated in their examination in chief with regard to arrest of accused Usman and Shamshad and nothing contrary has come out in their cross examination, it cannot be doubted that accused Usman and accused Shamshad were arrested from outside village Dhauj on the night intervening between 01.12.2010 and 02.12.2010 in the manner stated by these three witnesses. All the aforesaid three witnesses have deposed that since it was dead of SC No.22/13. Page 66 of 131 night, no public person was available at the spot and hence there is no public witness to the arrest of these two accused. In view of credible and unimpeachable testimonies of PW48, PW52 & PW56, it seems to be only a concocted story that accused Usman was apprehended from his house in village Mirpur in the evening of 01.12.2010, as deposed by him and by DW2 & DW3. Usman has mentioned in his statement u/s 313 Cr.P.C. that the motorcycle also was taken by the Police from his residence. He did not say so in his deposition as DW1. He did not examine any member of his family in support of his contention. Even DW2 and DW3 did not say in their testimony that the police party had taken away motorcycle also. Hence in the absence of any evidence to the contrary on record, it is to be believed that the motorcycle bearing registration No.HR-52B-1678 was seized at the spot of arrest of accused Usman and Shamshad at the time of their arrest.
62. Same can be said regarding testimony of DW4 the landlord of accused Shamshad. It may be noted here that DW4 has deposed that police officials came to his house one day about three years ago, during night time and apprehended accused Shamshad from his room whereas suggestion was given to PW56 in her cross examination that accused Shamshad was lifted from his house at 2 p.m. in the day in presence of many villagers. The contradiction between what was suggested to PW56 on behalf of accused Shamshad and testimony of DW4 clearly indicates that the deposition of DW4 is not trustworthy and he is a planted witness.
63. DW8, who also has been examined in this regard, too SC No.22/13. Page 67 of 131 appears to be planted witness. He stated in cross examination that accused Shamshad was staying as a tenant in the house of DW4 for the past about two and a half years but DW4 has stated that accused has been residing in his house as a tenant for the last about three months only. DW8 has stated that accused Shamshad is a resident of village Dhauj (accused himself says so in his statement u/s 313 Cr.P.C.) but it is not discernible as to why he was then residing as a tenant in the house of DW4. Moreover, both DW4 and DW8 have stated that accused Shamshad was residing alongwith his family. Thus his family members should have been the best witnesses if he was lifted from his house. None of his family members has come forward to depose in this regard. Therefore, the testimony of DW4 and DW8 cannot be accepted as it does not withstand the scrutiny.
64. So far as the argument of ld. Amicus Curie for accused Usman that there was no possibility of Usman and Shahid being together in view of the animosity between the two pursuant to a quarrel and criminal case, is concerned, I don't find any force in the same. No doubt, the document Ex. DW10/A shows that FIR No. 50/10 had been registered against Usman, Kamruddin and two more persons on 04.02.2010 on the complaint of Shahid's brother Shakir, yet there is no evidence on record to suggest that enmity continued till Nov. 2010. Admittedly accused Shahid was not the complainant. Moreover, this contention has been raised for the first time by Usman in his testimony. It was not suggested to any prosecution witness including IO. He did not say so in his statement u/s 313 Cr.P.C. Accused Shahid has not raised such plea at all. Had there been enmity between Usman and Shahid, SC No.22/13. Page 68 of 131 accused Shahid would not have remained silent in this regard as it was a ground to establish his innocence. In view thereof, I do not find any force in this alibi raised by accused Usman.
65. Further I may say that the place and manner of arrest of the accused would hardly affect the prosecution case, if it appears that the prosecution has been successful in establishing the guilt of the accused by other evidence on record.
RE:-RECOVERY OF MAHINDRA PICKUP VAN HR-27J-0964.
66. The testimonies of PW48, PW52 & PW56 reveal that both accused Usman and accused Shamshad had made disclosure statements after their arrest which are Ex.PW48/C and Ex.PW48/F respectively. Perusal of these disclosure statements show that both the accused had disclosed that they had abducted and gang raped the prosecutrix in Max Pick Up van no.HR-27J-0964 which they had purchased from a person named Jackam of village Utawara District Nuh, Mewat about 4/5 months before for a sum of Rs.1,20,000/- and that they can get the said vehicle recovered from village Tai, Tehsil Nuh, District Mewat, Haryana. Accused Usman had also disclosed that he can get recovered the countrymade revolver, used in the commission of crime, which he has concealed in his village. Both had also disclosed that the mattress which was laid on the floor of rear portion of the vehicle, on which they had gang raped the prosecutrix, had been taken by accused Shahid @ Billi to hide. They have further disclosed that their associate i.e. co-accused Shahid @ Billi had, in order to avoid being apprehended in this case, surrendered in Faridabad court on SC No.22/13. Page 69 of 131 26.11.2010 in an old criminal case and has been lodged in Neemka Jail, Ballabhgarh, Faridabad. It was also stated by them that they can get their other associates in crime also apprehended, whose names were stated as Iqbal @ Billi and Kamru @ Mobile.
67. The IO (PW56) as also PW48 and PW52 have deposed that after arrest of accused Usman and accused Shamshad, the two accused took them to village Tai to Tehsil Nuh, District Mewatr, Haryana, and on reaching there, first accused Shamshad pointed out the Mahindra Pick Up vehicle bearing registration no.HR-27J-0964 lying parked in an enclosed space belonging to one Bakkal saying that it is the same vehicle in which they had abducted and gang raped the prosecutrix. They have deposed that thereafter accused Usman also pointed out the same vehicle saying that he alongwith his associates had abducted and gang raped the prosecutrix in the same. The vehicle was seized vide seizure memo Ex.PW48/H. They made search for other assailants but could not find them and accordingly brought the two accused Usman and Shamshad to P.S. Saket. The aforesaid vehicle was towed upto P.S. Saket.
68. It is thus evident that the police had come to know for the first time by way of disclosure statements of accused Usman and Shamshad that the prosecutrix had been abducted and gang raped in Mahindra Pick Up van bearing registration no.HR-27J-0964. Till that time, police was not having knowledge about registration number and exact make of the vehicle. The prosecutrix had mentioned in her statement that it was a white SC No.22/13. Page 70 of 131 colour Pick UP vehicle, in which she was abducted and gang raped. Her friend 'S' also mentioned that the prosecutrix was abducted in a white colour Pick Up vehicle. It is further established from the testimonies of PW48, PW52 & PW56 that pursuant to the disclosure statements of accused Usman and accused Shamshad, the said Mahindra Pick Up vehicle bearing no.HR-27J-0964 was recovered from village Tai. The fact that the prosecutrix had been abducted and gang raped in Mahindra Pick Up vehicle bearing no.HR-27J-0964 and that the said vehicle is lying parked in the enclosed space of one Bakkal in village Tai was unknown to the police officials till the two accused Usman and Shamshad disclosed about the same, pursuant to which the said vehicle was recovered at their pointing out. Therefore the relevant portion of the disclosure statements of the two accused Usman and Shamshad becomes admissible in evidence in view of section 27 of the Evidence Act and it gets established that they knew that the prosecutrix had been abducted and gang raped in Mahindra Pick Up vehicle bearing registration no.HR-27J-0964 which has been parked in enclosed space of Bakkal in village Tai. It is not their defence that they had got this information from somebody else. Therefore, their knowledge about the said vehicle and recovery of the vehicle at their instance indicates their complicity in the crime.
69. Though Sh. Bakkal appearing as PW6 has turned hostile and did not support the case of the prosecution in this regard, however, he deposed that he knew the accused Iqbal @ Billi, who is his cousin (son of maternal aunt Bua). He also deposed that accused Iqbal used to visit his village Dhauj to meet his relatives.
SC No.22/13. Page 71 of 13170. PW6 Sh. Abbas has also turned hostile. He is a resident of village Tai and deposed that accused Iqbal's maternal uncle namely Asru resides in his village. He also deposed that Sh. Bakkal is also a resident of his village Tai and is cousin of accused Iqbal. Even though the aforesaid two witnesses PW5 & PW6 resiled from their statements recorded during the course of investigation, yet it is manifest from their deposition that Bakkal was not a total stranger to the accused and he is the cousin of accused Iqbal @ Billi, which indicates that Mahindra Pick Up vehicle bearing no.HR-27J-0964 may have been parked in the enclosed space owned by Bakkal with the assistance of accused Iqbal @ Billi.
RE:-ARREST OF ACCUSED SHAHID @ BILLI
71. It is also evident that the police became aware about the fact that accused Shahid @ Billi is lodged in Neemka Jail, Ballabhgarh, Haryana, from the disclosure statements of accused Usman and Shamshad. Accordingly, the IO obtained production warrants against him and were sent to Neemka Jail, Faridabad, whereupon accused Shahid @ Billi was produced before the Ld. Magistrate at Delhi on 04.12.2010 and was arrested in this case by PW36 Inspector Balram vide arrest memo Ex. PW36/A.
72. PW27 had proved the relevant page of Register No.1 maintained in Neemka Jail, Faridabad, as Ex.PW27/A which shows that accused Shahid @ Billi was brought to jail in custody in case FIR no.309/10, P.S. Mujesar, Faridabad, on 26.11.2010 and then was produced before the Ld. M.M. at Delhi on 04.12.2010 pursuant to production warrant received from the said court. He also proved SC No.22/13. Page 72 of 131 the report of Sh. Anil, the Dy. Superintendent, District Jail, Faridabad, Haryana, as Ex.PW27/B.
73. PW54 had brought the original case file of aforementioned FIR No.309/10, u/s.379 IPC, P.S. Mujesar, Haryana, and proved the Charge Sheet as Ex.PW54/A which shows that accused Shamshad @ Billi was arrested in this case on 26.11.2010.
74. It is thus clear that accused Shahid @ Billi had surrendered in Faridabad court in connection with FIR No.309/10, P.S. Mujesar on 26.11.2010 and was taken into custody and he was later on produced before the concerned Ld. M.M. at Delhi on 04.12.2010 on receipt of production warrant. The fact that accused Shahid @ Billi is lodged in Neemka Jail, Faridabad, was discovered by the IO only pursuant to the disclosure statement of accused Usman and accused Shamshad which makes the relevant portion of their disclosure statements admissible in evidence u/s. 27 of Evidence Act. Therefore, it is proved that accused Usman and Shamshad had the knowledge that accused Shahid @ Billi was involved in abduction and gang rape of the prosecutrix herein and he had fictitiously surrendered in Faridabad court on 26.11.2010 in connection with the aforesaid FIR, in order to avoid being apprehended in this case, which too is indicative of the fact that they alongwith accused Shahid @ Billi were involved in the abduction and gang rape of the prosecutrix. It is not the defence of accused Shahid that his name has been taken by Usman and Shamshad fictitiously or on account of some rivalry.
SC No.22/13. Page 73 of 131RE:-ARREST OF ACCUSED IQBAL @ BILLI & ACCUSED KAMRUDDIN.
75. PW49 SI Upender, PW39 HC Shivlal and HC Ranjeet were the members of the team formed by DCP South for the arrest of the accused in this case. They all were posted in PS Fatehpur Beri at that time. PW49 deposed that on 04.12.2010, he received information that accused Iqbal & Billi wanted in this case would come to meet somebody on Sohna Gurgaon Road. He passed on the information to IO Inspector Raj Kumari who was busy in some other case and requested him to conduct the raid. Accordingly, he alongwith PW39 HC Shiv Lal and HC Ranjeet reached T-point Sec. 56, Sohna, Gurgaon where secret informer met them. He requested many passersby to join the raiding party but nobody was willing to do so. After sometime, the secret informer identified a person coming from Sohna Road to be accused Iqbal @ Billi. That person was apprehended, interrogated and arrested vide arrest memo Ex. PW39/A. The information about his arrest was given to his cousin Sajju s/o Sh. Baban. Sajju came to the spot and put his thumb impression on the arrest memo at point 'C'. After the arrest, the accused was taken in muffled face to AIIMS for medical examination and then to PS Vasant Vihar where he was put in lockup.
76. PW39 has corroborated the version of PW49 regarding the arrest of accused Iqbal & Billi. While PW39 has not been cross examined, nothing contrary could be elicited in the cross examination of PW49. It has even not been suggested to PW49 that the accused Iqbal was not arrested from Sohna Road as SC No.22/13. Page 74 of 131 stated by him but was lifted from his house. In view of the same, the deposition of DW-6 and DW-7 appears to be concocted. It may be noted that DW6 claims to be the chowkidar (watchman) of village Dhauj for the last 15 years but did not know the name of accused Iqbal. He referred to him as Jamshed s/o Khurshid. Further, he stated that accused was apprehended from his house during night time whereas DW7 has deposed that accused was apprehended during day time. Thus it is evident that both are planted witnesses and have given false testimony to shield accused Iqbal. It stands established that the said accused was arrested at the place and in the manner as deposed by PW49 and PW39.
77. Accused Kamruddin is stated to have been arrested on 06.12.2010 from Sohna Ballabhgarh Road pursuant to a secret information. PW38 HC Umesh Kumar and PW40 HC Asgar Ali were the members of the team headed by SI Virender Prakash which apprehended him.
78. Both PW38 and PW40 have deposed that they were posted in PS Saket on 06.12.2010 and on that day, they alongwith SI Virender Prakash as well as other staff reached near village Lakwas on Sohna Ballabhgarh Road. A secret informer met them at 6.30 pm and informed SI Virender Prakash that accused Kamruddin is present in the village and is about to flee. SI Virender apprised them about the secret information. They remained stationed on the main road near village Lakwas and at about 7pm, the secret informer pointed towards a boy clad in jeans and jacket seen coming from the side of the village saying that he is SC No.22/13. Page 75 of 131 Kamruddin. They proceeded towards him to apprehend him but he ran away towards the fields. They chased him for about 700 to 800 meters and then overpowered him. On interrogation, he disclosed his name as Kamruddin @ Mobile and was then arrested by SI Virender vide arrest memo Ex. PW38/A. He was then brought to PSSaket and kept in lockup. SI Virender informed IO Inspector Raj Kumari about he arrest of accused Kamruddin.
79. The accused have not cross examined these two witnesses and their testimony has remained unchallenged and uncontroverted. It may be noted here that SI Virender Prakash could not be examined as he had already passed away before he could be summoned to depose in Court. This fact is mentioned in order sheet dated 19.01.2013 of this Court.
80. In view of the uncontroverted testimony of PW38 and PW40, the deposition of DW5 and DW9 that accused Kamruddin was lifted from his house, goes into pale of obscurity. The accused did not file any application seeking permission to cross examine these witnesses to challenge their testimony. Even otherwise also, DW5 and DW9 have not mentioned either the exact or approximate date and month when the accused was lifted from his house by Police. Their testimony is patently vague and bereft of necessary details and hence cannot be trusted. They too seem to be planted witnesses.
81. Thus it cannot be doubted that the accused Kamruddin @ Mobile was arrested on 06.10.2010 at the place and in the manner as deposed by PW38 and PW40.
SC No.22/13. Page 76 of 131RE:-RECOVERY OF CLOTHES BY THE ACCUSED AS ALSO THE 'DESI KATTA' (COUNTRY MADE PISTOL)
82. It is the case of prosecution that all the five accused lead the police party to their respective houses in their native village in Haryana on 09.12.2010 where they, except accused Kamruddin, recovered the clothes which they had worn at the time of commission of crime. Accused Usman also recovered a country made revolver from his house. However, accused Kamruddin could not locate his clothes from his house. PW48, PW52 and PW56 (IO) are the relevant witnesses in this regard.
83. PW48 has deposed that on 09.12.2010, he alongwith PW52, IO (PW56) and other staff reached PS Vasant Vihar and brought out the five accused of the lockup. Thereafter they reached the house of accused Usman @ Kale in village Mirpur, Distt. Palwal, Haryana. Accused Usman took off one black colour shirt and light blue colour pant from a nail on the wall of a room and stated that he was wearing these at the time of incident. These were put up in a white cloth pullinda and sealed by the IO with the seal of RK and she seized these vide memo Ex. PW48/V. Thereafter the accused Usman also got recovered a desi katta from the 'Taand' (slab) of the same room saying that accused Kamruddin had used it to terrorize the prosecutrix. IO Prepared its sketch Ex. PW48/W. Its length was 21.5 cm, the length of barrel was 12 cms. and that of the butt was 10 cms. It was put in a white cloth pullinda, sealed with the seal of RK and seized vide memo Ex. PW48/X. Thereafter they reached Billa colony, village Dhauj, SC No.22/13. Page 77 of 131 Faridabad, Haryana. There they first went to the house of accused Shahid @ Billi, who took out a lift yellow colour stripe shirt and blue colourlower having white stripes, from an iron almirah saying that he was wearing these at the time of incident. These were put up in a white cloth pullinda, sealed with the seal of RK and seized by the IO vide seizure memo Ex. PW48/Y. Then accused Iqbal @ Billi led them to his house in the same village. He took out a light pink colour shirt and light blue and white stripes pant from a suitcase saying that he was wearing these clothes at the time of incident. These were put up in a white cloth pullinda, sealed with the seal of RK and seized vide seizure memo Ex. PW48/Z. Thereafter accused Shamshad lead them to his house in the same village. He took out a creme and while colour stripe shirt and blud and black colour stripe pant and a round neck sweater from a steel box saying that he was wearing these clothes at the time of incident. These were put up in a white cloth pullinda, sealed with the seal of RK and seized vide seizure memo Ex. PW48/Z1. Thereafter accused Kamruddin lead them to his house in the same village but he could not locate his clothes, which he was wearing at the time of incident. Then they all returned to Delhi.
84. He also identified the 'desi katta' (countrymade revolver) Ex. P-6, clothes recovered by accused Shahid Ex. P-22 (colly.), clothes of Iqbal Ex. P-23 (colly.), clothes of Shamshad Ex. P-24 (colly.), and clothes of Usman Ex. P-24 (colly.), when shown to him during the course of his testimony.
85. In the cross examination, he stated that they had reached PS Vasant Vihar on 09.12.2010 as the accused had been SC No.22/13. Page 78 of 131 kept in the lockup there for the reason that there was no lockup in PS Dhaula Kuan. He stated that they reached PS Vasant Vihar at 10.30 am. There were 30 members in the team. He could tell the name of SI Sandeep (PW52) and IO Inspector Raj Kumari (PW56). He deposed that hey had left PS Vasant Vihar at about 11 am and reached village Mirpur at about 12.30/12.40 pm in a Tata 407 vehicle and a police gypsy. He further deposed that two or three ladies were found present in the house of accused Usman when they had reached there but their signatures were not taken on the seizure memos and sketch of katta Ex. PW48/W. He stated that seizure memo of katta Ex. PW48/X and its sketch Ex. PW48/W are in his handwriting. He added that sketch of the katta was prepared by the IO and the writing on it is in his hand.
86. The deposition of PW52 and PW56 (IO) is completely in sync with that of PW48. The ld. Counsels for the accused failed to point out any contradiction in testimony of these three witnesses. The fact that these five accused had taken the police party to their respective houses on 09.12.2010, can, otherwise also, not be doubted as accused Usman and Kamruddin have admitted the same in their statements u/s 313 Cr.P.C. Accused Kamruddin has also admitted that Shahid had got recovered a light yellow colour stripe shirt and blue colour lower having white stripe from an iron almirah in his house, Iqbal got recovered a light pink colour shirt and a light blue and white striped pant from a suitcase in his house and Shamshad got recovered a cream and while colour striped shirt as well as a blue and black colour striped pant and a round neck sweater from a steel box in his house. He, however, denied that accused Usman had got recovered his clothes and a SC No.22/13. Page 79 of 131 katta from his house.
87. It is pertinent to note here that PW56 has deposed in her cross examination that there were only two or three ladies present in the house of accused Usman at the time of recovery of revolver and clothes by him who refused to sign the seizure memos. She deposed that there was no other house around the house of Usman and hence there is no public witness to the recovery of revolver. She did not see any house for about 200-300 meters around the house of accused Usman. According to her, many persons had gathered at a distance from the house of Usman. She had called them to the house but they did not come. She denied all the suggestions including the one that katta and clothes have been planted upon the accused. A suggestion was put to her that the pant got recovered by Usman is small in size and cannot fit him, which she neither denied nor admitted. Another suggestion was given to her that blood spots were planted upon the pant after taking the blood of accused Usman.
88. The testimony of PW48, PW52 and PW56 as also the statements of accused Usman and accused Kamruddin clearly manifest that the accused had taken police party to their respective houses on 09.12.2010 and got recovered the clothes which they had worn at the time of incident, the details of which have been noted hereinabove and accused Usman had got recovered a 'desi katta' also from his house. PW56 has explained in her abovenoted cross examination as to why there is no public witness to these recoveries, which explanation appears to be plausible and acceptable.
SC No.22/13. Page 80 of 13189. I find no force in the submission made on behalf of the accused that the 'katta' and clothes have been planted upon the accused. The recovery of clothes by accused Shahid, Iqbal and Shamshad has been admitted by accused Kamruddin also in his examination u/s 313 Cr.P.C. It may be noted here that all the aforesaid clothes got recovered by the accused Usman, Shahid and Shamshad (except the pant of Usman) were found not having any blood or semen stain. Blood stains were found only upno the pant of the accused Usman. If the prosecution intended to plant clothes upon the accused, then they would have planted blood stained and semen stained clothes upon all the accused. After all, it is prosecution case that all the accused had raped the prosecutrix one by one and not only accused Usman. Further, since accused Kamruddin could not locate his clothes in his house, it has been stated by the aforesaid witnesses of the prosecution that nothing was recovered at the instance of Kamruddin from his house. It would have been easy to plant some clothes upon accused Kamruddin also. There was no reason to leave him. If, at all, the 'Katta' was to be planted, it was proper to show its recovery from accused Kamruddin as it was revealed during the investigation that he had used it to terrorize the prosecutrix. There was no point in planting it upon the accused Usman.
90. Further nothing has been extracted in the cross examination of PW48, PW52 and PW56 which may cast any doubt upon the recovery of these clothes and katta. These witnesses have spoken in identical tune in this regard and have corroborated each others version. It may also be noted here that as the DNA SC No.22/13. Page 81 of 131 report Ex. PW7/C, these clothes of accused alongwith the hair strand of the prosecutrix were received in the FSL on 13.12.2010. This co-relates the deposition of PW15 and PW57. PW15 has deposed that he handed over five sealed exhibits alongwith respective sample seals to SI Sushil Sarvaria (PW48) to be deposited in FSL and entry to this effect in the Register No. 21 was made by Constable Mukesh (PW57). He deposed that RC was prepared by PW57 and proved its copy as Ex. PW15/U. PW57 has deposed that RC Ex. PW15/U is in his handwriting and bears his signature and that he prepared the said RC at the request of MHC(M) Shyam Prakash (PW15) as he was having some pain in his left hand. In cross examination, he deposed that he prepared the RC Ex. PW15/U at about 10 am or 11 am and at that time only PW15 and PW48 were present in the malkhana. Thus the argument raised by ld. Amicus Curie that there is some anomaly in preparation of Ex. PW15/U and it is not clear who actually prepared it, holds no water.
91. What type of clothes were worn by the accused at the time of commission of crime was unknown to the police till the accused got recovered their respective clothes pursuant to their disclosure statements. This fact was discovered pursuant to their disclosure statements and hence the relevant portion of their disclosure statements becomes admissible in evidence in view of Section 27 of Evidence Act. The knowledge of accused Usman that the 'desi katta' used by accused Kamruddin during the commission of offence and the recovery of said katta from his house at his instance makes the relevant portion of his disclosure statement admissible in evidence.
SC No.22/13. Page 82 of 131RE:-TIP OF ACCUSED
92. It is not disputed that the TIP of accused Usman and Shamshad was conducted by PW37 in Tihar Jail on 04.12.2010. According to the record of TIP proceedings Ex. PW37/B, both these accused were correctly identified by the prosecutrix. However, accused Usman has raised an alibi that he had already been shown to the prosecutrix in the police station on 02.12.2010. Ld. Amicus Curie appearing for accused Usman also submitted that TIP record Ex. PW37/B itself shows that the prosecutrix had not identified Usman but some other undertrial.
93. In this regard it may be noted that PW37, the ld. MM has deposed that these two accused were produced before her in her chamber on 03.12.2010 and both expressed their willingness to participate in TIP and therefore, she fixed 04.12.2010 for the said purpose. This portion of her testimony has remained uncontroverted as she has not been cross examined with regards the same and even no suggestion has been put to her. It was at this occasion that accused Usman should have told PW37 that he has been shown to the prosecutrix on 02.12.2010 but he did not do so. He expressed willingness to participate in TIP without any hesitation or demur.
94. Further I have gone through the cross examination of IO Inspector Raj Kumari (PW56) very minutely. She has mentioned clearly everything that she did on 02.12.2010 after the arrest of Usman and Shamshad, when they reached village Tai and seized SC No.22/13. Page 83 of 131 the pickup vehicle, when they reached back PS Vasant Vihar, when she proceeded alongwith the two accused to Moti Bagh and Mangolpuri for identification of crime spots so forth and so on. She has maintained that throughout the day, the two accused were kept in muffled face. No suggestion has been given to her that the two accused were not kept in muffled face and could be seen by everybody at each of the aforesaid places. Only one suggestion has been given to her that accused Usman was shown to the prosecutrix before TIP and that she had pressuized the prosecutrix to identify accused Usman in TIP which she denied. The said suggestion seems to have been given half heartedly and in a routine manner without being serious about it. No specific suggestion has been put to her that she had shown the accused Usman to the prosecutrix in the police station on 02.12.2010, as claimed by accused Usman in his testimony as DW-10.
95. The prosecutrix (PW1) too has been subjected to extensive cross examination on the aspect of TIP on two occasions. First by Sh. A.R. Tyagi, Advocate representing accused Iqbal and Shamshad on 03.11.2011 and then by Sh. Amit Shrivastava, ld. Amicus Curies for accused Usman on the same day. She has not faltered at any point and stood her ground throughout the entire cross examination and reiterated that she identified the two accused Usman and Shamshad correctly during the TIP. She deposed that after the incident, she had seen the two accused for the first time in Tihar Jail during TIP on 04.12.2010 and thereafter she saw all the accused together in PS Vasant Vihar on 09.12.2010. She also stated that she had seen the accused in the T.V. Footage as well but their faces were covered. This SC No.22/13. Page 84 of 131 substantiates the version of PW56 that the two accused were kept in muffled face after their arrest.
96. No suggestion has been given to the prosecutrix also that accused were shown to her in the police station on 02.12.2010. Mr. Tyagi gave her suggestion that she had seen these two accused on the T.V. channel before the TIP and that they were shown to her by IO before joining the TIP which she denied. Mr. Shrivastava gave her the suggestion that accused Usman was exposed to her before TIP and for this reason she identified him during TIP or that IO had forced her to identify the accused during TIP. The defence sought to be put up by giving these suggestions to the IO (PW56) and the prosecutrix is contrary to what accused Usman has stated. He states that he was shown to the prosecutrix in the Police Station on 02.12.2010. Neither IO nor the prosecutrix has been questioned in this regard. He does not say that he was shown to the prosecutrix in jail before the TIP, as has been suggested to prosecutrix and the IO. As already noted that these type of suggestions do not indicate any seriousness and appear to have been put in a very casual and routine manner.
97. PW37 has further deposed that both the accused were correctly identified by the prosecutrix during TIP on 04.12.2010, as mentioned by her in the record of TIP proceedings Ex. PW37/B. In the cross examination, a suggestion was put to her that accused Usman was shown to the prosecutrix during his shifting from jail No.1 to jail No.3 which she denied. This suggestion was neither put to IO (PW56) nor to the prosecutrix (PW1) during their cross examination. Putting this suggestion to the ld. MM, who conducted SC No.22/13. Page 85 of 131 TIP, is of no use as if the IO intended to show the accused to the prosecutrix during shifting from one jail to another jail, he would take care that ld. MM shall not come to know about it.
98. A question was put to PW37 in the cross examination as to whether she had asked the prosecutrix if she had seen the accused Usman anytime after the incident and before the TIP to which she replied that she was not supposed to ask the prosecutrix about it. It was submitted by the ld. Amicus Curie appearing for Usman that it is obligatory for the ld. MM conducting TIP to ask the witness whether he had opportunity to see the accused after the incident and before TIP. He submitted that since PW37 did not question the prosecutrix about it, the TIP proceedings cannot be relied upon. He quoted 2007 Cr.L.J.(NOC) 99 (Bom) Rakesh Hari Lal Kahar Vs. State of Maharashtra and AIR 1970 SC 1831 Somappa Vamanappa Madar Shankarappa vs. The State of Mysore in support of his submissions. I think the ld. Amicus Curie has misread and misinterpreted the abovesaid two judgments. Perusal of these two rulings reveals that the abovenoted question should be put to witness to know if he can identify the suspect in TIP. In other words, the Magistrate conducting TIP shall get the satisfaction that the witness had the sufficient opportunity to see the assailant at the time of incident or soon after it as only then can he identify the suspect caught by the Police.
99. In the present case, the prosecutrix was with the assailants for about an hour and had sufficient time to see their faces and note their features. It is for the same reason that the Supreme Court had in Somappa's case (Supra) accepted the SC No.22/13. Page 86 of 131 identification of A1 and A2 by the witnesses in TIP. (see para 13 of the judgment).
100. Ld. Amicus Curie also submitted that perusal of TIP proceedings Ex. PW37/B itself reveals that the prosecutrix did not identify the accused Usman but some other undertrial. In order to appreciate the argument in better way, the relevant portion of TIP proceedings Ex. PW37/B is reproduced hereunder:-
"Now I asked the assistant superintendent to leave the room and he has left the room. Now, there is none else in the room except myself, steno and accused Usman. I have explained the meaning of TIP in Hindi to the accused and he has understood it. I have asked him if he wants to join the TIP proceedings. The accused submits that he wants to join the TIP proceedings. I have asked the accused Usman to pick up 8 to 10 under trials of his age group and of similar stature. The accused has picked up following under trials:-
1. Suresh s/o Rajinder
2. Sanjay s/o Ram Lal
3. Md. Alum s/o Ajimudeen
4. Ashok s/o Raj Kishore
5. Usman s/o Subhan Khan (accused)
6. Parvinder s/o SatyaNarayan
7. Harish s/o Lala Ram
8. Sanjeev Kumar s/o Suresh Chand Dubey
9. Vinod s/o Jagdish SC No.22/13. Page 87 of 131
10.Jitender s/o Pahlad.
I am of the opinion that accused and all under trials are of same age group and of similar physique. Now, there is none else in the room except myself, steno, accused and under trials. Door of the room is closed and all necessary precautions for TIP are taken.
Now, I asked the accused if he has any cut/identification mark on his face or revealing part of his body. No cut/identification mark is pointed out by the accused or revealed to me.
Now I have asked all the under trials to stand in a row facing me and given an option to the accused to stand anywhere in the said row and to change his clothes with any one of the inmates. On option being given, the accused has changed his clothes and position. The accused has preferred to stand at number 4th from my left and 7th from my right."
101. It was argued by the ld. Amicus curie that according to the ld. MM, accused Usman was standing at No.4th from her left and at No.7th from her right and the prosecutrix also identified the person standing at 4th position from left. He submitted that it was undertrial Ashok at that position, as per the list of undertrials mentioned in Ex. PW37/B and not Usman who was at position No.
5. SC No.22/13. Page 88 of 131
102. In my opinion, the argument raised by ld. Amicus curie is totally erroneous and again flows from misreading of Ex. PW37/B. In the first portion of these proceedings, the ld. MM has noted the names of undertrials which were picked by Usman for the TIP. Thereafter she closed the door of the room, asked accused Usman whether he had any cut/identification mark, took other necessary precautions and then asked all the undertrials to stand in row facing her. The accused was given an option to stand anywhere in the said row and to change his clothes with any one of jail inmates, which he did.
103. Thus there is nothing in Ex. PW37/B that the accused and other undertrials were standing in the same sequence as mentioned by PW37 in the first portion of the proceedings. The serial in which they have been mentioned by ld. MM in the said portion, cannot be taken to correspond to the sequence in which they stood at the time when prosecutrix had a look at them. The undertrials had changed places and the accused was given option to stand anywhere in the row. It is thus clear that the undertrials were not standing in the same sequence as mentioned in the first portion of TIP proceedings Ex. PW37/B. They as well as accused Usman had changed places before prosecutrix was asked to look at them. Hence it would be fallacious to say that the prosecutrix did not identify accused Usman but some other undertrial. It appears that the ld. MM had taken all the requisite precautions to hold the TIP in a free and fair manner. No fault can be found in the TIP proceedings.
104. Further when the proceedings held on 03.12.2010 and SC No.22/13. Page 89 of 131 04.12.2010 regarding TIP were put to accused Usman and accused Shamshad in their examination u/s 313 Cr.P.C. as question Nos. 95 and 96, they admitted these as correct. At that time also, accused Usman did not say that he had been shown to the prosecutrix on 02.12.2010 in Police Station or in Jail before the TIP.
105. Hence the evidence on record establishes beyond doubt that the prosecutrix had identified accused Usman and accused Shamshad correctly during TIP on 04.12.2010 conducted by PW37 which leads to conclusion that these two accused alongwith their associates had abducted and gangraped the prosecutrix on the intervening night of 23rd/24th Nov. 2010.
106. So far as accused Iqbal, Shahid and Kamruddin are concerned, they refused to participate in TIP on 07.12.2010. PW23 proved the record of proceedings regarding TIP of accused Iqbal and Shahid as Ex. PW23/A and Ex. PW23/B. The record relating to TIP of accused Kamruddin has been proved by PW37 as Ex. PW37/C.
107. Accused Iqbal and Shahid stated to PW23, the ld. MM that they were photographed and their photograph was shown by IO to the witness and hence they do not want to take part in TIP. Accused Kamruddin stated to PW37 that he has already been shown to the public persons in the police station and hence he does not want to participate in TIP.
108. It is evident that the three accused have taken a false alibi as a ground for refusal to participate in TIP. Accused Iqbal and SC No.22/13. Page 90 of 131 Shahid were arrested on 04.12.2010 i.e. just three days before the TIP. They were, thus, supposed to know when and where were they photographed. They have not mentioned to the ld. MM as to when and where were they photographed and to which witness was their photograph shown by the IO. Whether the witness was a male or a female. Intriguingly they have not maintained the same alibi in their statements u/s 313 Cr.P.C. Accused Iqbal stated in that statement that he was shown to the witness in Police Station before being taken for TIP. This is contrary to what he had said to PW23. Accused Shahid did not mention any ground for his refusal to participate in TIP, in his examination u/s 313 Cr.P.C.
109. Accused Kamruddin was put to TIP on the date of his arrest itself i.e. 07.12.2010. It is too intriguing that he does not say when and where was he shown to public persons and whether those persons were males or females. In his statement u/s 313 Cr.P.C. he did not put forward any ground for refusal to participate in TIP.
110. Further it has neither been put to PW1 (prosecutrix) nor to the PW56 (IO) that these three accused were shown to prosecutrix before the TIP.
111. In view of the same, it is manifest that the alibi taken by these three accused for refusal to participate in TIP is baseless and concocted. They deliberately did not take part in TIP in order to avoid being identified by the prosecutrix. Therefore, adverse inference has to be taken against them from their such conduct which indicates their probable complicity in the abduction and SC No.22/13. Page 91 of 131 gang rape of the prosecutrix.
RE:-IDENTIFICATION OF THE MACHINDRA PICK UP VEHICLE & THE ACCUSED IN POLICE STATION & IN COURT.
112. It is the case of prosecution that the prosecutrix and her friend 'S' identified the five accused as well as the Mahindra Pick up vehicle No. HR47J-0964 in the police station on 09.12.2010. Showing the accused as well as the vehicle to the prosecutrix and her friend 'S' was necessary for the reason that accused Iqbal, Shahid and Kamruddin had refused to join TIP and hence their identity as well as that of the said vehicle had to be established, since the vehicle was not recovered in the presence of prosecutrix and her friend.
113. PW57 (IO) has deposed that on 09.12.2010, when they returned from Mewat after recovery of clothes of accused and the desi katta, the accused were kept in lock up of PS Vasant Vihar. The prosecutrix and her friend 'S' were called to the police stationo and accused were shown to them separately one by one. Theyidentified all the five accused. Thereafter she alongwith the prosecutrix and 'S' reached PS Dhaula Kuan where the prosecutrix and 'S' identified the Mahindra Pick Up vehicle No. HR27J-0964 to be the same in which prosecutrix had been abducted and gang raped. She recorded the statements of prosecutrix, her friend 'S' and the police officials who were associates with the investigation on that day.
114. Ld. Amicus Curie appearing for accused Usman has not cross examined her on this aspect. In the cross examination SC No.22/13. Page 92 of 131 conducted on behalf of other accused, she deposed that the accused were shown to the prosecutrix only on one occasion i.e. on 09.12.2010. The accused were in the lock up on that date and were taken out from the lockup but were not in muffled faces. No question was put to her regarding the identification of vehicle by the prosecutrix and 'S'.
115. In this regard, the prosecutrix (PW1) has deposed that on 09.12.2010, she had identified all the accused at PS Vasant Vihar and at that time she was accompanied by her friend 'S' and brother Johnathan. In the cross examination conducted by ld. Amicus Curie for Usman, she deposed that at the time of incident, the colour of the inner portion of the pick up van was appearing to be black, but during day time, it was found to be green. She stated that she had seen the vehicle during day time on 09.12.2010 and only then she came to know that it was of green colour.
116. In further cross examination, on behalf of the remaining accused, she denied the suggestion that she was shown the photographs of the accused by Police before she identified them on 09.12.2010. She also denied the suggestion that she had, at first, refused to identify the accused but the police pressurized to identify them.
117. These two suggestions given to the prosecutrix are destructive of each other and cannot co-exist together. It means that the accused infact, found nothing wrong or perverse in the testimony of the prosecutrix and didn't get hold of any point to assail her deposition regarding identification of accused in the SC No.22/13. Page 93 of 131 Police Station. The wisdom of the accused in putting these mutually destructive or contradictory suggestions is not discernible and only strengthens the prosecution case. The prosecutrix could have either identified the accused on the basis of photographs shown to her or on the pressure of the police officials after first refusing to identify them. It cannot be both of these. Further no such suggestion has been given to the IO (PW56).It is also noticeable that no question has been put to her regarding the identification of the vehicle in PS Dhaula Kuan.
118. PW2 i.e. 'S' has deposed that on 09.12.2010, she did not join any other proceedings except that she had seen the vehicle Ex. P-5 in PS Dhaula Kuan. She further deposed that on 10.12.2010, she alongwith prosecutrix and her brother had gone to PS Vasant Vihar where they had identified all the five accused. However, in the cross examination by ld. APP after declaring her hostile, she corrected herself by saying that she and he prosecutrix had identified all the five accused in PS Vasant Vihar on 09.12.2010 and on 10.12.2010, she had accompanied the prosecutrix to the hospital. She also admitted that her statement was recorded on 09.12.2010 wherein she had mentioned that Shahid, Kamruddin and Shamshad were sitting in front of the vehicle and these three had come out, accused Kamruddin having shown pistol like thing and that Iqbal and Usman were sitting in the back portion of the vehicle.
119. There seems to be no effective cross examination of this witness on this aspect. She has reiterated that she had seen the accused first time on 09.12.2010 and denied the suggestion SC No.22/13. Page 94 of 131 that all the accused had been shown to her on 1st or 2nd Dec.2010.
120. Hence it stands establish beyond any doubt that both PW1 and PW2 had identified all the five accused in Police Station Vasant Vihar on 09.12.2010 and also identified the Mahindra Pick Up vehicle No.HR27J-0964 also on the same day in PS Dhaula Kuan, which had been used by the accused in commission of crime and got recovered by Usman and Shamshad pursuant to their disclosure statement.
121 It may also be noted here that the prosecutrix in her first statement to the Police Ex. PW1/A, which was recorded soon after the incident and forms the basis of FIR, had stated that she was abducted in a white colour pick up vehicle. PW2 too, in her statement dated 24.11.2010 recorded soon after the incident, has stated that it was a white colour pick up vehicle in which the prosecutrix was abducted.
122. It further needs to be noted that during the examination of PW2, the ld. ASJ, who was holding trial at that time had personally inspected the vehicle Ex. P-5 in the parking in court premises and has recorded as 'Court observation' on 02.11.2011 that the body of the vehicle is of white colour and is decorated with national flag as well as flowers in green and orange colour paint. Further the photographs of the vehicle Ex. P5 proved on record as Ex. PW19/A1 to PW19/A6 also shows that the body of the vehicle is of white colour from external side.
123. Therefore, the colour and make of the vehicle in which SC No.22/13. Page 95 of 131 the prosecutrix was abducted and gang raped, as mentioned by PW1 and PW2 in their first ever statement to the Police matches with that of vehicle Ex. P-5 got recovered by accused Shamshad & accused Usman.
124 Further both PW1 and PW2 have identified the said vehicle during the course of their testimony also. They also identified correctly all the five accused, mentioning their place of sitting in the vehicle and the prosecutrix giving details in what manner she had been gang raped by them. Prosecutrix clearly deposed that accused Shamshad was sitting on her right side and accused Kamruddin on her left side in the front portion of the vehicle. She pointed towards accused Usman saying that he was sitting in the rear portion of the vehicle. She further deposed that she had seen accused Shahid and Iqbal when she was shifted to rear portion of the vehicle at Mangolpuri. She also deposed that accused Kamruddin was having a pistol in his hand pointing towards her and he had raped her first in the moving vehicle. PW2 too had identified all the five accused in court but could not say who was sitting in the front portion of the vehicle. She, however, deposed that accused Shahid had pointed the gun towards her.
125. It was argued by the ld. Defence counsels that the PW1 and PW2 have stated that the vehicle in which prosecutrix (PW-1) was abducted was not having any number plate whereas the vehicle Ex. P-5 bears a number plate and hence it cannot be the same vehicle in which crime had taken place. The argument has been noted only to be rejected. It is evident from the aforementioned 'court observation' made by the then ld. ASJ SC No.22/13. Page 96 of 131 holding trial on 02.11.2011 after the physical inspection of the vehicle Ex. P-5 that its number plate is not visible by a mere glance at the vehicle and one has to make an effort to bend to see the number plate. It appear for this reason, PW1 and PW2 did not notice its number plate at the time of incident as it has been placed mischievously in such manner that it is not easily noticeable.
126. In view of this discussion, the identity of the accused to be the assailants and that of the vehicle Ex. P-5 to have been used in the commission of crime, cannot be doubted.
RE:-OWNERSHIP OF THE MAHINDRA PICKUP VEHICLE HR-27J-0964 (EX.P-5)
127. PW24 has proved the certificate of registration of said vehicle as Ex. PW24/A which shows that it was registered in the name of Mohd. Sabir s/o Mohd. Esa on 11.07.2008. PW35 also proved its registration certificate as Ex. PW35/A. Mohd. Isa appearing as PW4 deposed that his son Mohd. Sabir sold the said vehicle to Mohd. Shaukat on 01.05.2009. He had handed over the original 'halafnama' (affidavit) Ex. PX1 bearing photograph of Shaukat Ali, 'Mukhtarnama Khas' (special power of attorney) Mark PB and photocopy of another 'halafnama' mark PC to the IO on 11.01.2011 which had been seized vide memo Ex. PW4/A bearing his signatures. He too deposed further that vehicle was of white colour. The vehicle Ex. P-5 was not shown to him for identification as the ld. Defence counsels had stated that it may not be done.
SC No.22/13. Page 97 of 131128. Mohd. Sabir, appearing as PW17 also confirmed that the said vehicle No. HR 27J-0964was owned by him and the same was sold by him to Shaukat Ali vide 'halafnama' Ex. PX1. He further deposed in cross examination that thereafter same was never possessed by him.
129. PW51 is Shaukat Ali and PW53 is Sh. Rais. Both have deposed that they had purchased vehcle No. HR27J-0964 in partnership from Sabir (PW17) in the year 2009 for a sum of Rs. 1,45,000/- and its transfer documents were prepared in the name of Shaukat. They further deposed that thereafter Rais had sold the same to Islam r/o Mirpur, Palwal, Haryana.
130. While PW51 identified the vehicle from the photographs Ex. PW19/A-1 to PW19/A-6, PW53 has, on physical inspection of the vehicle Ex. P-5, stated that it does bear the number plate HR27J 0964 but it does not seem to be the same which he and Shaukat had purchased from Sabir. He deposed that colour of its chasis is different but did not explain in what manner.
131. Islam is the brother of accused Usman. In his statement u/s 161 Cr.P.C. he admitted having purchased Mahindra pick up vehicle No. HR27J0964 from Rais for a sum of Rs. 1,20,000/- vide a 'halafnama' duly notorized on 11.08.2010 and further stated that the vehicle used to be driven by his brother Usman. However, he could not be examined as a witness in the court for the reason his mental faculties had got seriously damaged on account of head injury suffered in a road accident and he did not appear to be a normal person. (As noted in order SC No.22/13. Page 98 of 131 sheet dated 03.06.2013).
132. Even in the absence of testimony of Islam, it is clearly established that he had purchased the vehicle Ex. P-5 from Rais and therefore, it does not remain a riddle as to how the same came to be in the possession of accused Usman (his brother) and his associates on the fateful night.
133. It may also be noted here that the accused Usman, in his statement u/s 313 Cr.P.C. has not denied that his brother Islam had purchased the said vehicle from Rais. When this fact was put to him (see Q. No.180) he simply said "I don't know".
RE:-MEDICAL EXAMINATION OF PROSECUTRIX
134. The prosecutrix appearing as PW1 has deposed that after she had been brought to Police Station Dhaula Kuan from Mangolpuri in early morning of 24.11.2010, she was taken to Safdarjung Hospital for medical examination. She further deposed that on the day of incident, she was wearing black jeans, shirt, bra, underwear and jacket and all of these except her jacket were taken by the doctor who examined her in the morning of 24.11.2010, who then handed over the same to Police. In her cross examination, she deposed that she had reached hospital between 4 am and 5 am on 24.11.2010 and when she was being examined by the doctor, she was sometimes alone and sometimes accompanied by her sister. However, when she was naked, he sister was not there. She must have remained in the hospital for about one hour. She deposed that she could not state in her SC No.22/13. Page 99 of 131 statement Ex. PW1/A that she was wearing black jeans, shirt, bra, underwear and jacket at the time of incident and that all these except her jacket were taken by the doctor who examined her in the morning of 24.11.2010 and handed over to the police as her statement had been recorded before taking her to the hospital. She deposed that her clothes were sealed by the doctor in her presence in the hospital on 24.11.2010. She did not remember whether she had signed the pullinda containing her clothes or the seizure memo. She didn't know which kind of tests were conducted by the doctor upon her. She identified the black colour jeans (Ex. P1), red colour T-shirt (Ex. P-2), red colour panty torn on front as well as on its left side (Ex. P-3) and black colour bra (Ex. P-4) when shown to her in court.
135. PW2 also has deposed that after she met the prosecutrix in the Police Station Dhaula Kuan in the morning of 24.11.2010, she accompanied her to Safdarjung Hospital and after the medical examination of prosecutrix, they were brought back to PS Dhaula Kuan wherefrom they were taken to Mizoram House. PW13 (the sister of the prosecutrix) deposed that after reacing PS Dhaula Kaun, she found her sister i.e. the prosecutrix and few Mizo friends present there. From Police Station, she and 'S' accompanied the prosecutrix to Safdarjung Hospital where prosecutrix was medically examined. She deposed that after medical examination, the clothes of her sister were taken by the doctor and she came back to her room, took new clothes for her sister, which she wore in the hospital. Thereafter they were brought back to the Police Station.
SC No.22/13. Page 100 of 131136. The prosecutrix was taken to Safdarjung Hospital by PW47, PW16 and Constable Jaiveer. PW56 (IO) had reached there later on.
137. In this regard PW47 has deposed that after the registration of FIR, the investigation was marked to Inspector Raj Kumari. Meanwhile he alongwith Const. Jaiveer and lady constable Santra (PW16) took the prosecutrix to Safdarjung Hospital for medical examination. The sister of prosecutrix also accompanied them to Hospital. He further deposed that after her medical examination, the doctor handed over three sealed pullindas and one sample seal to ladyconstable Santra (PW16). Meanwhile IO (PW56) also reached the hospital and PW16 handed over the pullindas and sample seal to her and she seized those vide seizure memo Ex. PW16/A bearing his signatures at point B.
138. In the cross examination he deposed that they left the Police Station for hospital at 4.30 am, reached there at 4.45 am and remained there till 8.30 am. PW56 reached there at about 6.30/7 am. He didn't know the name of doctor who conducted medical examination of prosecutrix. He didn't remember the impression of the seal hand over by the doctor to PW16.
139. PW16 has deposed that on 24.11.2010 she alongwith PW47, prosecutrix, her sister and 'S' had gone to Safdarjung Hospital where medical examination of prosecutrix was conducte. After medical examination of the prosecutrix, the doctor handed over to her three sealed pullindas and one sample seal of SJH which she handed over to IO (PW56) who had also reached SC No.22/13. Page 101 of 131 hospital and she seized those vide seizure memo Ex. PW16/A. In the cross examination, she stated that they had reached the hospital at about 3.30/4 am and remained there till 6.30/7 am. She deposed that she had signed the MLC of the prosecutrix in token of its receipt but it was found that MLC does not bear her signatures.
140. PW56 has deposed that on 24.11.2010 she had reached PS Dhaula Kuan at about 5/5.15 am and after receipt of original rukka as well as the copy of FIR from the duty officer, she alongwith SI Sushil, SI Sandeep, ASI Mukti and a constable reached Safdarjung Hospital, by that time, the gynecological examination of the prosecutrix had already been done but she was undergoing further examination. She further deposed that PW16 handed over three sealed pullindas and one sample seal to her in presence of SI Harish (PW47) which she seized vide memo Ex. PW16/A. Thereafter they left for the crime spot near M/s. Sharma Automobiles. It would be pertinent to reproduce her the relevant portion of her cross examination:-
"I had reached Safdarjang hospital on 24.11.2010 at about 6.30 AM or 7 AM. By that time the gynecological examination of the prosecutrix had been conducted. I did not record the statement of the doctor who had examined her. However I had met and talked to the doctor. The doctor had handed over the exhibits to lady Ct. Santra who handed over those to me. It is wrong to suggest that I had not visited Safdarjang hospital and for that reason the exhibits SC No.22/13. Page 102 of 131 were given by the doctor to lady Ct. Santra. It is wrong to suggest that I prepared the seizure memo of the exhibits Ex. PW16/A in the police station. I had not obtained the signatures of the doctor or any staff member of the hospital as a witness on the seizure memo. The seizure memo is in my handwriting. I had checked the seals of all the exhibits. The clothes of the prosecutrix were not in a cardboard box. I have seen the seizure memo Ex. PW16/A. It is correct that it mentions that the envelope containing inner and outer clothes of the prosecutrix was kept in the cardboard box. I had prepared the seizure memo at about 7 AM or 7.15 AM. The clothes were kept in a yellow coloured envelope. The envelope had been sealed with the seal of CMO. The mouth of the envelope had been closed by transparent tape.
At this stage an envelope containing the outer clothes of the prosecutrix is shown to the witness. She admits that it bears the seal of SJH and its mouth is closed by white adhesive tape and not by transparent tape.
At this stage another envelope containing the undergarments of the prosecutrix is shown to the witness. She admits that the white coloured envelope having no seal and its mouth is not having any tape. However, it has semi circular red marks at three places. There appears seal of Dr. Kavita Soni at these three places as well as her signatures."SC No.22/13. Page 103 of 131
141. It was on the basis of the aforesaid cross examination of PW56, that the ld. Amicus curie had argued that the samples of the prosecutrix have been tampered with in the malkhana of the police station to support the prosecution case. To fully appreciate and discuss the submissions of ld. Amicus Curie, the contents of seizure memo Ex. PW16/A are also reproduced hereunder:-
"In the presence of following witnesses after medical examination of complainant/victim (Ms...............d/o Sh. ...........) r/o 11/78, Ist floor, Moti Bagh, Nanakpura, New Delhi conducted vide MLC No. 35365/10 at S.J. Hospital, Lady constable Santra 2261/SWD produced the following parcels/exhibits having seal/stamp of Dr. Kavita Soni M.S. (OBST & GYNAE) Senior Resident VMMC & Safdarjung Hospital New Delhi and seal of SJH Sr. No. (1) One sealed parcel box containing (i) Debri collection (ii) Nail scraping
(iii) In between finger (iv) culture (viii) washing from vagina
(ix) Rectal examination (x) Urine and oxalate (xi) garments inner & outer (xii) Blood collection as mentioned on the box.
Sr. No. (2) One sealed envelope mentioned as outer clothing.
Sr. No.(3) one sealed envelope mentioned as inner clothing. Sr. No.(4) one sample seal of SJH.
All the above mentioned exhibits/parcels and sample seal are taken in police possession for the purpose of evidence in above mentioned case.
Hence memo is prepared.
Witness Produced by :-
sd/- sd/-
SC No.22/13. Page 104 of 131
SI Harish D-4538(PIS-16080359) L/Ct. Santra 2261/SWD
PS Dhaula Kuan. PS Dhaula Kuan."
142. The medical examination of the prosecutrix was conducted by PW12 at Safdarjung Hospital. She deposed that the prosecutrix was brought to the hospital on 24.11.2010 at abut 4.45 am with the history of sexual assault and she examined her. She proved the MLC of prosecutrix as Ex. PW12/A and further stated that she had collected following samples of prosecutrix:-
(i) Debri Collection
(ii) Nail scraping
(iii)In between fingers
(iv)breast swab
(v) clipping of pubic hair
(vi)vaginal secretion
(vii)culture
(viii)washing from vagina
(ix)rectal examination
(x) urine and oxalate
(xi)garments inner and outer.
She deposed that all these exhibits were sealed with the seal of hospital and were handed over to Police.
143. In the cross examination, she deposed that the Medical Examination Report For Sexual Exploitation (Ex. PW12/DA) and Medical Examination For Age Estimation (Ex. PW12/DB) are in her handwriting and bear her signatures. She further deposed that she had not taken any receiving from the Police regarding the SC No.22/13. Page 105 of 131 samples of prosecutrix as the receiving is given at GRR MLC register. She deposed that documents Ex. PW12/B (OPD card of prosecutrix), Ex. PW12/DA and Ex. PW12/DB were received by lady constable Santra (PW16) immediately after their preparation. She deposed that she had herself sealed the exhibits with the seal of the hospital but seal of Safdarjung Hospital was not used for sealing the envelopes containing the samples. The envelopes were sealed by dressing tape all around and she had put her signatures on the sides all envelopes. She had taken and prepared the micro slide of vaginal secretion and rectal examination. There was no swelling on the private parts of the prosecutrix. She further disclosed that she had prepared 11 envelopes of the samples collected from the prosecutrix separately and all the samples were after sealing, kept in a big box which was also sealed with the adhesive tape and then signed all around. Then she handed over the big box to lady constable. She was shown the said cardboard box (parcel No.3 of FSL 2010/DNA-5218 with the seal of FSL, AKS, Delhi). She deposed that it bears her signature at points A, B, C and D at all the four corners of the adhesive stamp and she had put her official stamp on it. She deposed that all the exhibits except the clothes of the prosecutrix were kept by her in the said big box. She didn't know who had put the seal of SJH on the said box as it was put in her presence.
144. The card board box was again opened in the presence of this witness in court and found containing 12 envelopes. She deposed that all these 12 envelopes were prepared by her but these do not bear her official stamp and signature. She hadclosed these with the adhesive material alaready available on the SC No.22/13. Page 106 of 131 envelope. In response to a question put to her, she clarified that the small envelopes were not sealed but only closed with the help of adhesive material already available upon those and only the big box containing all the samples was sealed and signed by her.
145. The argument raised by the ld. Amicus Curie appearing for accused Usman is that the DNA report Ex. PW7/A shows that two micro slides having whitish smear, cotton wool swab, another microslide, another cotton wool swab and blood sample of the prosecutrix were subjected to DNA analysis and all other samples were returned unexamined. He submits that there is no mention of aforesaid samples in the MLC Ex. PW12/A, OPD card Ex. PW12/B and in the testimony of PW12, then how did these samples reach FSL. It is his submission that these samples have been manipulated later on by the IO to substantiate the false accusations against the accused particularly accused Usman.
146. From the testimony of PW47, PW16 and PW56 (IO) it is evident that PW12 had handed over the samples of the prosecutrix including her clothes contained in three sealed pullindas and sample seal to the PW16 who handed over these to PW56 in the hospital itself. PW56 seized those vide memo Ex. PW16/A. The seizure memo Ex. PW16/A clearly mentions that one of the sealed pullindas contained various samples of the prosecutrix including her blood sample, other sealed pullinda contained her outer clothing and the third sealed pullinda contained her inner clothing, all bearing the seal of SJH. The sample seal also was of SJH. PW56 has clearly stated in her cross examination that clothes of the prosecutrix were not kept in the card board box but separately in SC No.22/13. Page 107 of 131 two yellow colour envelopes. It also appears from the cross examination of PW12 that she had kept the samples of prosecutrix, other than her clothes, in 12 small envelopes which she placed in the cardboard box which was then sealed and signed by her.
147. A look at the cardboard box reveals that the details of samples kept in it are mentioned on its outer surface. 'Blood' is also mentioned therein. Further the Medical Examination Report For Sexual Exploitation (Ex. PW12/DA) also mentions the 'blood' of prosecutrix has been collected. (see para 15). PW12 has deposed in her examination that this document is in her handwriting and bears her signature. She was asked to go through it during her cross examination. She has not stated that there is any interpolation or addition/alteration in the same. It has nowhere suggested to her that she had not obtained the blood sample of prosecutrix and the same has been manipulated later on.
148. It appears that due to inadvertence or for some other reason, PW12 did not mention about blood and micro slides as well as cotton wool swabs in the MLC Ex. PW12/A and OPD card Ex. PW12/B. It is mandatory for a doctor examining a rape victim to collect her blood sample and micro slides of vaginal secretion, vaginal swabs, vulval swabs etc. and it is regularly done in every rape case. There was no reason for PW12 for not collecting 'blood' and other slides of the prosecutrix in this case. She appears to have done it but could not mention in Ex. PW12/A and Ex. PW12/B. Her attention was never drawn to the discrepancy either in her chief examination or in her cross examination which if done, she SC No.22/13. Page 108 of 131 would have clarified the same.
149. It also needs note here that the MHC(M) appearing as PW15 has deposed that IO had deposited sealed exhibits of the prosecutrix alongwith sample seal of SJH in the malkhana on 24.11.2010 and he made entry to this effect in register No.19 at sl. No.572 and proved its copy as Ex. PW15/A. He further deposed that he had sent these three sealed exhibits alongwith sample seal of SJH to FSL through HC Dheer Singh (PW31) and proved the copy of RC as Ex. PW15/R. He also proved the noting in this regard on register No.19 Ex. PW15/A from pint 'X' to 'X'. He also deposed that PW31 had handed over to him receipt Ex. PX which he pasted in the register No. 21.
150. PW31 has also deposed that he had taken three sealed pullindas with seal of SJH and sample seal of SJH from MHC(M) to be deposited in FSL, Rohini and he deposited the same in FSL vide RC No.150/21/10 Ex. PW15/R. He had obtained acknowledgment Ex. PX from the FSL which he had given to MHC(M). In the cross examination, he deposed that the RC Ex. PW15/R has been filled up in his handwriting and bears his signature.
151. Ld. Amicus Curie had argued that both PW15 as well as PW31 claims to have prepare RC Ex. PW15/R which creates doubt in its genuineness. In this regard it is to be stated that PW15 has deposed in his cross examination that Ex. PW15/R is not in his handwriting and does not bear his signature. He deposed that it is in the handwriting of HC Dheer Singh who also was MHC(M) at that time and he (PW15) was having injury in his left hand by which he SC No.22/13. Page 109 of 131 writes, he being a south paw. I find that PW15 has not stated even in his examination in chief also that RC Ex. PW15/R is in his handwriting or was prepared by him. There is nothing wrong in preparation of the said RC by PW31 as he too was MHC(M) at that time. Hence the submissions of ld. Amicus Curie are sans any merit.
152. Further the DNA report Ex. PW7/A also shows that the cardboard box was sealed with the seal of SJH and contained 12 paper envelopes containing following samples:-
DESCRIPTION OF THE SOURCE Parcels received on 26.11.2010 vide FSL No. 2010/DNA-5218 Parcel 1.: One sealed cardboard box sealed with the seal of "SJH" containing exhibits '1A', '1B', '1C', '1D', '1E', '1F', '1G1', '1G2', '1G3', '1H', '1I', '1J-1', '1J-2', '1K-1', '1K-2' & '1L'. Exhibit 1A : One paper envelope mentioned as "Debri Collection" is returned un-examined. Exhibit 1B: One paper envelope mentioned as "Nail scapping" is returned un-examined. Exhibit 1C: One paper envelope mentioned as "In Between fingers" is returned un-examined.
Exhibit 1D: One paper envelope mentioned as "Breast swab" is returned un-examined.
Exhibit 1E: One paper envelope mentioned as "clipping of pubic hair" is returned un-examined. Exhibit 1F: One paper envelope mentioned as "Cervical Mucus Collection" is returned un-examined.SC No.22/13. Page 110 of 131
Exhibit 1G-1 & 1G-2: Two Microslides having thin whitish smear.
Exhibit 1G-3: A piece of cotton wool swab. Exhibit 1H: One paper envelope mentioned as "Culture" is returned unexamined.
Exhibit 1I: One paper envelope mentioned as "Washing from vagina" is returned un-examined. Exhibit 1J-1: One Microslide having thin whitish smear. Exhibit 1J-2: A piece of cotton wool swab. Exhibit 1K-1 & 1K-2: Dark brown liquid described as "Blood Collection of Victim" kept in tubes. Exhibit 1L: One paper envelope mentioned as "Urine and Oxalate Blood vial" is returned unexamined. Parcel 2: One paper envelope sealed with the seal of "SJH" containing exhibits '2A' and '2B' said to be "outer clothings of prosecutrix.
Exhibit '2A': One T-shirt.
Exhibit '2B': One Jeans Pants.
Parcel 3: One paper envelope sealed with the seal of "SJH" containing exhibits '3A' and '3B' said to be "Inner clothings of Prosecutrix.
Exhibit '3A': One Brassiere.
Exhibit '3B': One cut/torn underwear.
153. This clearly corresponds to the testimony of PW15 and PW31 as also to that of PW12 that she had kept 12 samples of prosecutrix, other than her clothes, in 12 small envelopes which she then place in the card board box. The fact that PW56 (IO) did not describe correctly the colour of envelopes containing clothes SC No.22/13. Page 111 of 131 of prosecutrix and the colour of tape with which those were sealed does not matter at all. It has to be kept in mind that she was examined after more than three years of incident, during which time she would have investigated many other cases and therefore, it would not have been possible for her to keep in mind these minute details. It is evident from DNA report Ex. PW7/A, testimony of PW7, PW15, PW31 and that of IO (PW56) that the samples taken from prosecutrix during her medical examination as well as her clothes (as mentioned in seizure memo Ex. PW16/A) were sent to FSL and received therein on 26.11.2010 in sealed condition. Hence it can, at the most said that the blood and microslides of the prosecutrix were collected on 25.11.2010, if not on 24.11.2010 on which date also the identity of the assailants was not known and the accused were yet to be identified or arrested and hence there was no reason or occasion for the Police to manipulate or tamper with these samples.
154. Therefore, I do not find any merit in the submissions of the ld. Amicus Curie that the samples of the prosecutrix were manipulated and tampered with.
155. So far as the underwear of the prosecutrix is concerned, PW12 has clearly deposed that she collected the inner as well as outer clothing of the prosecutrix. Same is mentioned in MLC Ex. PW12/A and OPD card Ex. PW12/B. Prosecutrix (PW1) has also deposed that her underwear was also taken by the doctor at the time of her medical examination. No question has been put to PW1 as to how did she carry the underwear upto hospital, when as per her deposition, it was not in a position to be worn on account SC No.22/13. Page 112 of 131 of being torn and having been used to clean her vagina several times. She was the best person to clarify it. Even no question has been put to PW12, the doctor as to who handed over the underwear to her and when. The DNA report Ex. PW7/A clearly mentions that one brassiere and one torn underwear of prosecutrix was received in one of the sealed parcels on 26.11.2010.
156. Even there is no cross examination of PW56 (IO) in this regard. Ld. Counsel for the accused Usman had submitted that some eunuchs had been brought to Police Station on 02.12.2010 or 03.12.2010 who made him to masturbate and the semen ejaculated by him was planted upon the said underwear of prosecutrix later on. The argument merits outright rejection. This has been disclosed by accused Usman for the first time in his testimony as DW-10. This has not been put to any of the prosecution witnesses including IO in their cross examination. The accused did not say so even in his examination u/s 313 Cr.P.C. He did not complain about the same to any of the Magistrates before whom, he was produced during the course of investigation of the case or to the ld. Session Judges who had been conducting trial of the case during all these years. The IO (PW56) has described the proceedings dated 02.12.2010 in detail in her cross examination. They had returned to PS Saket from Village Dhauj at about 8.30 am, remained there for one hour and reached the spot near Sharma Automobiles at 11.30 am. They reached Mangolpuri at 12.30 pm or 1 pm, and from there AIIMS at 3 pm or 3.30 pm. The accused were then taken to Dwarka Court straight away where they were produced before the concerned ld. MM at 5.30 pm and SC No.22/13. Page 113 of 131 sent to JC. Since then they had been in JC till 09.12.2010. Thus I don't see that there was any time on 02.12.2010 when the police could have brought eunuchs to the Police Station. Further, as already noted herein above, that the underwear & brassiere of the prosecutrix was received in the FSL in a sealed envelope on 26.11.2010 and that since then the same remained in the FSL till these were examined by PW7, there was no possibility for planting the Usman's semen on it on 02.12.2010 in the Police Station as claimed by him. No suggestion has been given to PW56 or PW7 that the said underwear was not received in FSL on 26.11.2010 but remained in the police station till 02.12.2010.
157. The said story concocted by the accused Usman is otherwise also patently baseless for the reason that the DNA report Ex. PW7/A clearly mentions that the parcel containing underwear of the prosecutrix was received alongwith her other samples on 26.11.2010. So the question of planting semen stains of accused Usman upon it on 02.12.2010 or 03.12.2010 does not arise at all.
RE:-COLLECTION OF HAIR STRAINDS OF THE PROSECUTRIX
158. The prosecutrix had been taken to AIIMS again on 10.12.2010 on which date her hair sample was collected. PW-20 and PW36 had taken her to the hospital on that date.
159. PW20 has deposed that on 10.12.2010, she alongwith Inspector Balram (PW36) took the prosecutrix and her friend 'S' from Moti Bagh to AIIMS Hospital, New Delhi where the hair sample SC No.22/13. Page 114 of 131 of the prosecutrix was collected by the doctor. She deposed that the doctor handed over the hair sample to PW36 in a sealed pullinda alongwith sample seal in her presence and PW36 seized the same vide seizure memo Ex. PW1/E. The doctor had also prepared MLC Ex. PW11/A on that occasion and the same also was received by PW36. She deposed that the seizure memo Ex. PW1/E was signed by the prosecutrix's friend 'S' also.
160. In this regard PW36 has deposed that on 10.12.2010 on the directions of the senior officers, he alongwith lady constable Kusum (PW20) took prosecutrix and her friend 'S' to AIIMS where the sample of prosecutrix's scalp hair were taken. Same were handed over to him in sealed pullinda which he seized vide seizure memo Ex. PW1/E.
161. Prosecutrix has also deposed that she had been taken to hospital on 10.12.2010 where her sample hair was taken by the doctor.
RE:-INSPECTION OF MAHINDRA PICK-UP VEHICLE HR 27J-0964.
162. Though the IO (PW56) has not mentioned in her examination in chief as to when and through whom has she sent the aforesaid vehicle to the FSL for inspection by forensic expert, however, in her cross examination conducted by ld. Amicus Curie for Usman on 17.1.2014, she deposed that she sent the said Mahindra Pick Up vehicle to FSL Rohini on the same day on which it was recovered at the instance of accused Shamshad as well as SC No.22/13. Page 115 of 131 Usman i.e. 02.12.2010 through Inspector Nipun (PW19). She further deposed that it was sent at about 1 pm or 2 pm and she had handed over the request letter to PW-19. She did not know when PW-19 had taken the vehicle from PS Saket. She further deposed that she made a DD entry in PS Dhaula Kuan regarding the sending of said vehicle to FSL and the vehicle was deposited in the malkhana after it was brought back from the FSL.
163. It may be noted that in her chief examination, PW56 has deposed that PW-19 had handed over the inspection memo Ex. PW19/A in respect of the said Mahindra Pick Up vehicle to her on 03.12.2010.
164. PW-19 has deposed that on 02.12.2010, the IO Inspector Raj Kumari gave him a request letter Ex. PW19/DX-IV addressed to the Director FSL Rohini for examination of seized vehicle No. HR26J-0964. He took the vehicle to FSL Rohini and handed over he same to Sh. A.K. Shrivastava (PW7) Assistant Director (Biology) who alongwith Sh. C.P. Singh, Assistant Director(physics) started the inspection of vehicle but as it had had gone dark, they deferred the inspection for the next day. He deposed that he spent the night in the FSL and the remaining examination of the vehicle was conducted on 03.02.2010. One photographer had also joined the inspection of the vehicle in the morning and had taken the photographs of the vehicle. After the examination of the vehicle, PW7 handed over to him, two sealed brown colour envelops, one containing some hairs strand lifted from the left side seat next to the driver of the vehicle in his presence and another containing a piece of dirty check colour SC No.22/13. Page 116 of 131 cloth of seat cover which also was lifted in his presence from the vehicle during the course of examination. Both these envelopes were bearing the seal of AKS FSL Delhi. PW7 had handed over both these envelopes alongwith sample seal to him and he seized these vide memo Ex. PW19/A. Thereafter he brought the vehicle back to the police station. He deposited the sealed envelopes alongwith sample seal in the malkhana. He handed over the original seizure memo prepared by him to the IO. Later on his statement was recorded by the IO. He had identified the hairs strand and the seat cover Ex. PW22 and Ex. PW21 respectively, when shown to him during the course of his testimony. He also identified the Mahindra Pick Up vehicle from the photographs alongwith Ex. PW19/A-1 to Ex. PW19/A-6 as it was conveyed by the IO that the condition of the said vehicle was deteriorated while lying in parking in the police station, all its tyres have got deflated and therefore, it was not possible to bring the vehicle to the court. In the cross examination conducted by Sh. Abdul Salam, Advocate, he denied that PW7 did not lift any exhibit from the said vehicle in his presence. He deposed that the photographer had taken photographs of the vehicle from all the sides and PW7 had lifted the piece of the seat cover in his presence. He also deposed that about 5 to 6 FSL Officers and a rider constable Tarun kumar was present during these proceedings. He could tell the name of only one official i.e. Mr. Gupa, Asssitant Director, FSL.
165. In the cross examination conducted by ld. Amicus Curie Sh. Shrivastava, he deposed that he took the Mahindra Pick Up vehicle Ex. P-5 to FSL on 2.12.2010 in the evening but he did not remember the exact time when he reached there. However, he SC No.22/13. Page 117 of 131 stated that he reached there in broad day light i.e. before evening. PW7 received the vehicle immediately and soon thereafter started its inspection. He deposed that PW7 inspected the vehicle for about one hour and thereafter deferred the same to the next day because of sunset. PW7 did not prepare any report on that day. He further deposed that inspection continued for about 3-4 hours on the next day. He had spent the night in the guard room and the vehicle was lying parked in front of the guard room. He denied that he had left the vehicle un-attended and stated that the guard of the FSL was present outside the guard room throughout the night. He did not remember the number of photographs taken by the photographer. He had obtained the signatures of PW7 as a witness on the seizure memo Ex. PW19/A. He denied further suggestions put to him.
166. In this regard, PW7 has deposed that one Mahindra Max Pick Up vehicle bearing No.HR27J-0964 was produced in the campus of his office at FSL Rohini by the investigating officer of this case. A team comprising of himself, Ms. Shashi Bala, SSO (Biology), Sh. D.S. Paliwal SSA (Biology), Ms. Seema Dagar Scientific Associate (Biology) was organized for the inspection and collection of incriminating evidence from the said vehicle. He deposed that the said vehicle was examined on 02.12.2010 from 7.30 pm to 8.30 pm and again on 03.12.2010 from 10 am to 11.30 am. He further deposed that the driver seat as well as the seat adjacent to it and the back side portion of the vehicle were thoroughly examined for the presence of biological material including biological stains like blood and semen. A cutting having some suspected stains as well as 11 strands of hair were SC No.22/13. Page 118 of 131 recovered from the front seat of the vehicle, were handed over to the concerned IO for onward transmission to the laboratory for detailed examination. He deposed that these had been kept in two separate envelopes which were sealed with the seal of AKS FSL Delhi. He proved the original crime scene report as Ex. PW7/A. After having a look at the vehicle No. HR26J-0964 in the parking of the court, he identified the vehicle to be the same which he had inspected and from which he had lifted the hairs strand and seat cover. He also identified the hairs strand Ex. P-20 and the piece of seat cover Ex. P21 when shown to him during the course of his testimony.
167. In the cross examination, he reiterated that the vehicle in question was produced before him in the FSL on 02.12.2010 and he examined the same on the same day up to 8.30 pm and on the next day from 10 am to 11.30 am. However, he also deposed that DNA could not be isolated from the aforesaid two exhibits i.e. hair strands and seat cover piece on account of less quantity and condemnation. He could not say whether the hair strands were of the accused or were of the victim.
168. In view of the aforesaid evidence on record, there does not remain any doubt regarding the fact that the vehicle in question was brought to the FSL for inspection purposes on 02.12.2010 and the same was inspected by PW7 alongwith its team on 02.12.2010 as well as on 03.12.2010 and certain hairs strands, piece of seat cover was lifted from it and handed over in two separate sealed pullindas to PW-19.
SC No.22/13. Page 119 of 131RE:-MEDICAL EXAMINATION OF ACCUSED
169. PW42, PW52 and IO (PW56), who were in team which arrested accused Usman and Shamshad on the intervening night of 1.12.2010 and 2.12.2010 have deposed that after the two accused pointed out the crime spot at Mangol Puri Industrial Area, they were taken to AIIMS Hospital where their medical examination was conducted and after the medical examination of both the accused, the doctor handed over 10 sealed pullindas and two sample seals to IO PW56 which she seized vide seizure memo Ex. PW48/M.
170. From the hospital, the two accused were taken to Dwarka Court, produced before the concerned ld. MM and were sent to JC. Thereafter these three witnesses returned to the police station and the IO deposited the case property in the malkhana.
171. I have gone through the entire cross examination of these two witnesses conducted on behalf of accused in this regard but I do not find anything contrary to the prosecution case. Further, when these facts were put to these two accused, in their examination u/s 313 Cr.P.C., they did not raise any dispute. (see question No. 85 put to each of the accused).
172. From the further deposition of PW48 and IO PW56, it is also evident that on 8.12.2010 accused Shahid, Iqbal and Kamruddin were produced before Sh. Jagminder Singh, ld. MM and they were remanded to two days' PC. From court, the three accused were taken to AIIMS where their medical examination SC No.22/13. Page 120 of 131 including the potency test was conducted. After the medical examination of the three accused, the doctor handed over to PW56 four sealed exhibits alongwith one sample seal in respect of each of the accused and she seized those vide memo Ex. PW48/T. Thereafter the accused were brought to the Police Station Vasant Vihar and kept in the lockup. Nothing contrary has been elicited in the cross examination of these two witnesses in this regard. Further when these facts were put to accused Shahid in his examination u/s 313 Cr.P.C., he did not dispute these. Accused Kamruddin admitted that he was taken to AIIMS for medical examination but denied that his blood samples were taken by the doctor. Accused Iqbal denied having any knowledge regarding their having been taken to AIIMS and their samples collected by the doctor.
173. PW9 is the doctor, who had conducted medical examination of accused Usman in AIIMS on 2.12.2010. He deposed that he examined accused Usman at about 3.27 pm and proved the MLC prepared by him as Ex. PW9/A. He deposed that on examination of the private parts of the accused, nothing was found to suggest that he is not capable of performing sexual act under normal circumstances. He also deposed that he had preserved and seized the underwear, blood in EDTA vial as well as FTA card, pubic hairs, perennial swab, control swab and handed over these to the IO in sealed condition. In the cross examination conducted on behalf of accused Usman, he deposed that he had obtained the consent of the accused before examining him and had explained the procedure to the accused in his own language.
SC No.22/13. Page 121 of 131174. PW-10 has conducted the medical examination of accused Shamshad. He deposed that the accused was brought to the hospital by the police at about 3.28 pm and he examined the accused after obtaining his voluntary consent for the same. He had also explained the nature and consequences of medical examination of the accused. He deposed that upon examination of private parts of the accused, he opined that there was nothing to suggest that the accused cannot perform sexual act under normal circumstances. He also deposed that after the medical examination of the accused, he seized the underwear, pubic hair sample, perennial swab, control swab of the accused as well as his blood in EDTA vial and FTA card. He handed over all these in sealed condition to the IO. He proved the MLC of the accused Shamshad as Ex. PW10/A. He has not been cross examined at all on behalf of accused.
175. PW8 had conducted the medical examination of accused Kamruddin, accused Iqbal @ Billi and accused Shahid @ Billi on 08.12.2010. He has proved the MLCs as Ex. PW8/A, Ex. PW8/B and Ex. PW8/C respectively. He deposed that on the basis of the examination of private parts of all the three accused, he opined that they are capable of performing sexual act in ordinary circumstances. He also had preserved their blood in gauze and in micro FTA card, perennial swab, pubic hair sample of all the three accused and handed over these in sealed condition to the IO alongwith sample seals. He also was not cross examined on behalf of accused at all.
176. According to testimony of IO (PW56) she had sent the SC No.22/13. Page 122 of 131 aforesaid case property to the FSL on 09.12.2010 through PW36. PW36 has deposed that on the direction of the IO, he alongwith one Head Constable had taken some sealed pullindas alongwith sample seals to FSL Rohini on 09.12.2010 and deposited the same there. He deposed that the pullindas were deposited in the FSL by the Head Constable. He had obtained the acknowledgment in this regard from the FSL, which he deposited back with the MHC(M). He deposed that the pullindas remained intact so long those were in his custody. There is no cross examination of PW56 or PW36 in this regard.
177. MHC(M) appearing as PW15 has deposed that on 9.12.2010, he handed over 14 sealed exhibits alongwith the respective sample seals to HC Jagdish as per the directions of PW36 Inspector Balram to be taken to FSL Rohini vide RC No. 153/21/10 and an entry to this effect was made in register No.21 by Munshi constable Mukesh in his presence and on his direction. He proved the photocopy of the RC as Ex. PW15/T and identified the signatures of constable Mukesh upon the same. He proved the receipt of the FSL, handed over to him by HC Jagdish as Ex. PX2, original of which was pasted by him in the register No.19. He has not been cross examined at all regarding the said RC and the acknowledgment.
178. From the aforesaid evidence, it is manifest that the various samples of the accused had been properly taken by the aforementioned doctors at AIIMS Hospital on 8.12.2010 and the same had been then sent to FSL on the very next day i.e. 09.12.2010, thereby leaving no room for any tampering or SC No.22/13. Page 123 of 131 manipulation in the samples. DNA report Ex. PW7/C also shows that these samples of the accused had been received in the FSL for 09.12.2010 vide FSL No. 2010/DNA-5439 in sealed condition.
RE:-THE DNA REPORT
179. PW7 Sh. A.K. Shrivastava, has examined all the exhibits of the case in FSL. He has submitted a detailed report which he proved as Ex. PW7/C. According to his deposition and the report Ex. PW7/C, blood was detected on following exhibits:-
Exhibit 1K-1 & 1K-2: Dark brown liquid described as "Blood Collection of Victim" kept in tubes. Exhibit '13 A' One FTA card of accused Usman @ Kale. Exhibit '13 B' One FTA card of accused Shamshad @ Khutkan.
Exhibit '17' One FTA card described as 'Blood samples on FTA Card" said to be of accused Shahid @ Billi. Exhibit '21' One FTA card described as 'Blood samples on FTA Card" said to be of accused Iqbal @ Billi. Exhibit '25' One FTA card described as 'Blood samples on FTA Card" said to be of accused Kamruddin @ Kamru @ Mobile.
Exhibit '34B' One pant having dirty stains.
180. As per the report Ex. PW7/C, human semen was detected on following exhibits:-
Exhibit '1G-1' & '1G-2': Two Microslides having thin whitish smear.SC No.22/13. Page 124 of 131
Exhibit 'IG-3': A piece of cotton wool swab. Exhibit '1J-1': One Microslide having thin whitish smear. Exhibit '1J-2': A piece of cotton wool swab. Exhibit '2 B' One Jeans Pants.
Exhibit '3B' One cut/torn underwear. Exhibit '33B' One Pants.
Exhibit '34B' One Pants having dirty stains.
181. The deposition of PW7 as well as his report Ex. PW7/C also show that DNA could not be isolated from Ex. 28 (hairs strands lifted from vehicle No. HR26J-0964), Ex. 29 (seat cover piece lifted from the vehicle No. HR26J-0964), Ex. 33B (Pant belonging to accused Iqbal) and Ex. 36 (hairs strand of the prosecutrix). The DNA was isolated from Ex. 1G1, 1G2, 1G3, 1J1, 1J2, 1K1, 1K2, 2B, 3B, 13A, 13B, 17, 21, 25 and 34B. According to the conclusion reached by PW7, on the basis of DNA finger printing by way of STR analysis, DNA profile found in Ex. 13A (FTA card of accused Usman), Ex. 13B (FTA card of accused Shamshad), Ex. 17 (blood sample of accused Shahid), Ex. 21 (Blood sample of accused Iqbal), Ex. 25 (Blood sample of accused Kamruddin) are responsible for the biological stains i.e. semen present in DNA profile on Ex. 1G1, 1G2 (micro slides), 1G3 (cotton wool swab), Ex. 1J1 (Micro slides), Ex. 1J2 (Cotton wool swab), Ex. 2B (Jeans pant of prosecutrix) and Ex. 3B (Underwear of prosecutrix). He has also given the conclusion that the DNA profile found in Ex. 1K1, 1K2 (blood of victim) is matching with the DNA profile of biological fluid i.e. blood present on Ex. PW34B (Pant of accused Usman @ Kale).
182. The witness PW7 has been subjected to detailed cross SC No.22/13. Page 125 of 131 examination but nothing has been pointed out by any of the defence counsels to suggest or show any kind of short coming or manipulation in the examination of exhibits by this witness, extracting of the DNA from Exhibits and the DNA profiling.
183. It is thus evident that DNA of all the accused was found present in the vaginal slides as well as vaginal swabs of the prosecutrix and also upon the jeans pant as well as underwear, she was wearing at the time of incident. Further DNA found in the blood stains on the pant of the accused Usman was found similar to the DNA of the prosecutrix, as isolated from her blood sample. Hence the DNA report clearly demonstrates that the prosecutrix had been raped by these five accused.
184. It was submitted by the ld. Amicus Curie representing accused Usman that since the prosecutrix has clearly deposed that she did neither bleed nor receive any injuries on her body during the incident of gang rape, how come her blood was detected on the Usman's pant in the forensic examination. It is his submission that the same has patently been manipulated and planted. I do not agree to the submissions of the ld. Counsel. It is not discernible why would police plant blood stains only upon the pant of Usman. If the Police had made up its mind to plant incriminating evidence upon the accused, it would have planted blood upon the clothes of all the accused and also upon the seat cover of the Mahindra Pick Up vehicle No. HR27J-0964. No blood stains or semen stains were found on the seat cover of the said vehicle or upon the clothes of accused Shamshad, Shahid or Iqbal. Therefore, I am not convinced that the blood stains, found on the Usman's pant, were planted.
SC No.22/13. Page 126 of 131185. It appears that there had been slight bleeding from the vagina of the prosecutrix when she was gang raped by the five accused, which could not be noticed by her on account of darkness. The prosecutrix has deposed that the accused did not take off their lower garments while raping her but had only pulled their lower garments down upto knee level. It may have so happened that the knee of accused may have fallen upon the blood which had come out of the vagina of the prosecutrix and thus he got blood stains on his pant, which was detected during its forensic examination. Vaginal bleeding cannot be doubted as it is quite natural that a girl would have vaginal bleeding when raped by five boys one after another.
186. Moreover, the involvement of accused Usman in the gang rape of the prosecutrix is otherwise also established from other evidence on record including DNA Report ( which shows that his DNA also was found in the vaginal slides of the prosecutrix) as discussed herein above.
RE:-PISTOL
187. It is the case of prosecution and also has been amply proved from the evidence on record that the accused Kamruddin was having a 'desi katta' in hand which he pointed towards prosecutrix and her friend 'S' to terrorise them. However, a 'desi katta' was got recovered by accused Usman from his house.
188. No charge under any section of the the Arms Act has been framed against accused Kamruddin. Charge u/s 25/27 Arms SC No.22/13. Page 127 of 131 Act has been framed against accused Usman. As per the case of prosecution itself, accused Usman had not used the Katta during the commission of crime. Hence the charge under Section 27 Arms Act framed against him fails. So far as the charge u/s 25 Arms Act is concerned, the evidence in that regard is neither credible nor convincing. There is no convincing evidence to show that the 'Katta' recovered from the house of accused Usman is the same which was used by accused Kamruddin during the abduction and gang rape of the prosecutrix.
189. It is true that when the pistol Ex. P-6 (recovered from the Usman's house at his instance) was shown to prosecutrix during her testimony, she identified it to be the same which was pointed towards her at the time of incident. However, PW2 has candidly deposed she cannot say whether pistol Ex. P-6 is the same which was pointed towards her. I am unable to persuade myself that PW1 (prosecutrix) has correctly identified the said pistol Ex. P-6. She has not mentioned any specific identification mark which she had noticed upon it at the time of incident. Moreover, when it was pointed towards her, only the front portion of its nozzle would have been visible to her and it is almost impossible to identify a pistol after having seen only its nozzle. The TIP of the pistol Ex. P-6 has not been conducted.
190. In view of the same, I don't accept the identification of pistol Ex. P-6 by the prosecutrix. Therefore, the prosecution has failed to prove that pistol Ex. P-6 was the same which was used in the commission of crime involved in the case.
SC No.22/13. Page 128 of 131191. No doubt, the mere possession of 'Katta' by accused is an offence u/s 25 of Arms Act, however, it is to be kept in mind that the 'katta' Ex. P-6 was recovered from the house of accused Usman in Haryana and not in Delhi within the territorial jurisdiction of this Court. It is a distinct offence, triable by the competent court in Haryana. The offence would have been tried alongwith other offences in this case, if it was shown that the 'katta' Ex. P-6 is the same, which was used to terrorize the prosecutrix and her friend 'S' whereby the recovery of 'Katta' from the house of Usman at Haryana would have been a part of same transaction. But that is not the case.
192. That apart, the charge u/s 25 of Arms Act is not legally sustainable otherwise also. It is evident from the perusal of Section 39 of the Arms Act, that prosecution under Section 25 of the Act cannot be initiated unless there is sanction for the same from the concerned sanctioning authority. In other words, the cognizance of offence u/s 25 Arms Act cannot be taken by the Magistrate in the absence of sanction u/s 39 of the Act. In the instant case, charge sheet has been filed on 02.02.2011 and the Magistrate took cognizance also on the same date but the sanction under Section 39 of the Act was accorded by PW55 on 28.3.2011. Therefore, patently the taking of cognizance of offence u/s 25 on 02.02.2011 is bad in law as there was no sanction u/s 39 of the Act on that date, which came to be accorded after more than a month thereafter. It has been held by the High Court in Smt. Javitri Devi vs. State 1971 Cr.L.J.1340 that the absence of sanction u/s 39 on the date of filing of charge sheet is not a curable defect u/s 537 of Cr.P.C. and the entire proceedings are vitiated. Law enunciated SC No.22/13. Page 129 of 131 in the said judgment is fully applicable to the instant case.
193. Hence accused Usman is liable to be acquitted of the charge u/s 25 of Arms Act.
RE:-SUBMISSION REGARDING THE ADKNOWLEDGMENTS OBTAINED FROM FSL
194. It was submitted by ld. Amicus Curie that none of the acknowledgments, issued by FSL regarding deposit of case property there, mentions that sample seals also were deposited. He argued that it is thus evident that sample seals were not sent to FSL alongwith the exhibits which implies that all the exhibits had been tampered with.
195. In this regard I may note that it has become a practice in the FSL not to mention about receipt of sample seals alongwith exhibits in the acknowledgments issued to the person depositing the exhibits. There are acknowledgments issued by FSL in almost each case in this court but sample seals do not find mention in any of those. The practice followed by the FSL officials is not understandable and needs to be deprecated. It appears that a direction needs to be issued to the FSL officials to discontinue this practice and mention in every acknowledgment, the number of sample seals deposited alongwith the exhibits.
196. Same practice has been followed in the instant case also. It is deposed by PW31, PW36, PW42 and PW48, who had deposited exhibits of this case in FSL on various dates, that they SC No.22/13. Page 130 of 131 had deposited sample seals also. PW15 too has deposed that he had sent the exhibits alongwith respective samples seals to the FSL. Thus non mentioning about sample seals in the acknowledgment issued by the FSL is immaterial and does not create any doubt in the prosecution case.
CONCLUSION
197. The scrutiny of the evidence lead by the parties as discussed hereinabove inevitably demonstrates that the prosecution has succeeded in proving the charges u/s 365/34 IPC, u/s 376 (2) (g) IPC and u/s 506/34 IPC against all the five accused. However, it has failed to prove the charge u/s 25 Arms Act against accused Usman.
198. Resultantly, all the five accused are hereby convicted for the offences u/s 365/34 IPC, u/s 376 (2) (g) IPC and u/s 506/34 IPC. However, accused Usman is acquitted of the charge u/s 25 of Arms Act.
199. Before parting with, I feel it my duty to place on record deep appreciation for the able assistance rendered by the ld. APP and the ld. Amicus Curie appearing for accused Usman.
Announced in open (VIRENDER BHAT)
Court on 14.10.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.22/13. Page 131 of 131