Delhi District Court
State vs . 1. Ravi Kumar, on 13 February, 2014
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 91/13.
Unique Case ID No.02405R0098062012.
State Vs. 1. Ravi Kumar,
S/o Sh. Kanwar Pal,
R/o H. No.C-84, Gali No.9,
Qutub Vihar, Phase-II,
Chhawla,
New Delhi.
2. Vinod @ Chhotu,
S/o Sh. Chaman Lal,
R/o H.No.A-85, Gali No.2,
Qutub Vihar, Phase-II,
Chhawla,
New Delhi.
3. Rahul,
S/o Sh. Kanwar Pal,
R/o H. No.C-84, Gali No.9,
Qutub Vihar, Phase-II,
Chhawla,
New Delhi.
Date of Institution : 09.5.2012.
FIR No.35 dated 09.2.2012.
U/s. 363 IPC.
P.S. Chhawla.
Date of reserving judgment/Order : 27.1.2014.
Date of pronouncement : 13.2.2014.
JUDGMENT
1. The above named three accused had been SC No.91/13. Page 1 of 62 chargesheeted by the police for having committed the offences punishable u/s.365/367/376(2)(g)/377/302/34 IPC. It is alleged that they kidnapped a girl named 'K' (real name withheld in order to conceal her identity) while she was returning home from her office alongwith her two other friends, gang raped her and then killed her.
2. As per the prosecution case, an information was received in P.S. Chhawla on 09.2.2012 at about 9.18 p.m. from the Police Control Room to the effect that a girl had been kidnapped in a red colour Tata Indica car near Hanuman Chowk, Qutub Vihar, Chhawla and the car was going towards Shyam Vihar. The information was recorded as DD No.27A and it was entrusted to SI Prakash Chand for suitable action. Accordingly, SI Prakash Chand alongwith Const. Rakesh reached the said spot at Hanuman Chowk, Qutub Vihar, New Delhi, where they met the complainant Saraswati. SI Prakash Chand recorded her statement wherein she stated that she is in a private job at DLF Gurgaon and on 09.2.2012 at about 8.45 p.m. she was returning home alongwith her friends Pooja, Sangita and the victim girl 'K'. When all four of them were going on foot towards their homes vide Hanuman Chowk, a red colour Indica car came from behind and suddenly applied breaks on reaching near them. A boy opened the door of the car and pulled 'K' forcibly inside the car. Three or four boys were sitting in the Indica car.
3. On the basis of aforesaid statement of complainant Saraswati, FIR was recorded u/s.363 IPC and the investigation was commenced by SI Prakash Chand. He prepared the site plan of the SC No.91/13. Page 2 of 62 spot of incident and recorded the statement of the witnesses. He flashed WT messages regarding the kidnapped girl as well as the vehicle and also uploaded the information on Zipnet. Efforts were made to trace the aforesaid vehicle as well as the kidnapped girl. On 12.2.2012 further investigation of the case was transferred to Special Staff, South West New Delhi and it was entrusted to SI Ashok Kumar. He also made efforts to trace the kidnapped girl as well as the vehicle but did not succeed. On 13.2.2012 further investigation of the case was entrusted to Inspector Sandeep Gupta. On the same day, Inspector Rajender Singh produced the accused Rahul and a red colour Tata Indica car bearing registration no.DL-3CAF-4348 before Inspector Sandeep Gupta stating that accused Rahul was found roaming in the said car near Metro Station, Sector-9, Dwarka, New Delhi. Inspector Sandeep Gupta made inquiries from accused Rahul. During inquiries, he confessed that he alongwith his brother Ravi and one Vinod @ Chhotu had kidnapped a girl from Qutub Vihar, committed rape upon her, killed her and threw her dead body in the fields ahead of Jhajjar. He also stated that they had done all this in the said Tata Indica car bearing registration no.DL-3CAF-4348. Accordingly, accused Rahul was arrested and thereafter accused Ravi and accused Vinod were also arrested. The disclosure statements of all the three accused were recorded wherein they admitted to have kidnapped, gang raped and killed the victim girl namely 'K'.
4. It is further the case of the prosecution that the aforesaid Tata Indicar car was seized. One mobile phone each was recovered from the personal search of accused Rahul and accused Ravi and these also were seized. Thereafter, Inspector Sandeep SC No.91/13. Page 3 of 62 Gupta alongwith his staff, Crime Team and the two accused Ravi and Vinod left for the search of the dead body of 'K' and found the same in mustard fields, near Karawara More, village Rodai, at the instance of the two accused. Information about the same was conveyed to P.S. Rodai. ASI Balwan alongwith staff and his Crime Team from P.S. Rodai also reached the spot. The Crime Team lifted some hair strands from the body of the deceased as well as two plastic glasses, one empty pouch of snacks, piece of earthenware pot, a broken piece of a red colour plastic Bumper and one purse near the dead body. Thereafter ASI Balwan Singh sent the dead body to Civil Hospital, Rewari for postmortem examination. The two accused were brought to Delhi and were got medically examined. During the course of further interrogation, accused Rahul got recovered the mobile phone of the deceased. All the three accused also got recovered the clothes which they were wearing at the time of incident. They also got recovered the panty of the deceased which she was wearing at the time of incident and the steel Parat, in which they had burnt the articles belonging to the deceased.
5. On 15.2.2012 further investigation of the case was entrusted to Inspector Ranjeet Singh. He got the aforesaid Tata Indica car inspected by CFSL team. Hair strands found inside the car as well as in its seat covers were seized. Accused Rahul also pointed out the spot of incident to him. He obtained opinion from the autopsy doctor regarding the Jack and Pana, which were found in the Tata Indica car and it was opined by the doctor that the external injuries found on the body of the deceased could be possible by the said Jack and Pana. Thereafter, he got the scaled SC No.91/13. Page 4 of 62 map of the spot prepared by the Draftsman. The hair strands of the deceased which had been preserved by the autopsy doctor were sent to Safdarjung Hospital for examination. All the articles lifted from and near the dead body were sent to CFSL for examination. The Tata Indica car was also sent to CFSL for examination. The IO also obtained the call details record of mobile no.9540594640 of the deceased, mobile no.9968988533 of accused Rahul and mobile no.8802090923 of accused Ravi. The location of all these mobile phones was revealed to be in the area where the dead body of the deceased was found on the night intervening between 09.2.2012 and 10.2.2012. Statements of other witnesses were recorded. CFSL result was obtained, which showed that there were blood stains on the Jack and DNA extracted from these blood spots matched with the female DNA extracted from the vaginal swab and anal swab of the deceased. Similarly, the hair strands lifted from the rear seat of the aforesaid Tata Indica car matched with the DNA profile of the vaginal swab and anal swab of the deceased. Blood spots were also found on the seat covers on the said Tata Indica car and the DNA extracted from those blood spots matched with the DNA extracted from vaginal swab and anal swab of the deceased. Semen spots were also found on the seat covers of the said Tata Indica car. DNA extracted from the said semen spots matched with the DNA extracted from various samples taken from accused Vinod and accused Rahul. Human semen was also found in the vaginal swab of the deceased and its male DNA fraction exhibited a mixed profile, which matched with alleles contained in the DNA profile of accused Ravi and accused Vinod. Human semen was also found in the anal swab of the deceased. The DNA extracted from blood SC No.91/13. Page 5 of 62 stained earth lifted from the spot where the dead body of the deceased was found to match with the DNA profile of the vaginal swab as well as anal swab of the deceased. The DNA extracted from the hair strands lifted from the body of the deceased by forensic team Rewari matched with the DNA extracted from the blood sample of accused Ravi.
6. After completion of the investigation, Charge Sheet was prepared and laid before the concerned court. Upon committal of the case to the court of Sessions, Charges u/s.365/34 IPC, u/s.367/34 IPC, u/s.376(2)(g) IPC, u/s.377/34 IPC, u/s.302 IPC and u/s.201/34 IPC were framed against all the three accused on 26.5.2012. Since the accused pleaded not guilty to the aforesaid charges, trial was held.
7. The prosecution has examined 49 witnesses to bring home the guilt of the accused. The accused were examined u/s. 313 Cr.PC on 27.11.2013 wherein all of them denied the incriminating facts and circumstances put to them and claimed false implication. Only one witness was examined on behalf of accused Rahul and Ravi in their defence. He is the Legal Assistant of 'Nav Bharat Times' and had brought the issue dated 15.2.2012 of daily newspaper 'Nav Bharat Times' Ex.DW1/A.
8. Following witnesses were examined by the prosecution at trial :-
1. PW1 Ms. Pooja Rawat. She alongwith Sangeeta and Saraswati was accompanying the deceased at the time SC No.91/13. Page 6 of 62 when the deceased was kidnapped. She is eye witness to the kidnapping of the deceased in a red colour Indica Car.
However, she could not see the faces of the assailants. She tried to make call to her brother Vikas Singh Rawat but the call did not go through. After some time she received call from her brother and she apprised him about the kidnapping of the deceased.
2. PW-2 Sh. Vikas Singh Rawat. He is the brother of PW-1. He had received a call from her mobile No.9899865069 on his mobile No. 7503783378 on 9.2.2012 but the call got disconnected. Then he made call to PW-1 and she told him about the kidnapping of deceased in a Red Colour Indica Car. His house is situated near Hanuman Chowk. He immediately came out of his house and saw red colour Indica Car coming from Chhawla side at a very high speed and turned towards Tajpur. He went towards Chhawla and saw his sister coming alongwith her friends.
3. PW3 Sh. Prem Singh Negi. He resides in the neighbourhood of deceased. On 13.2.2012, he was informed by the father of the deceased that his daughter who had been kidnapped on 9.2.2012 was murdered and her dead body was left on the road going to Karawra Phatak. He alongwith father of the deceased and two other persons namely Laxman Singh and Umed went to the place where dead body was lying and he identified the dead body of the deceased.
SC No.91/13. Page 7 of 624. PW4 Sh. Vikas. On 09.02.2012 at about 8.30 pm when he had got down from a bus at Sumesh Vihar Bus Stand Chhawla and was going towards his house, in qutub Vihar, he saw red colour Indica Car stopped near a group of three or four girls and the boys inside the car dragged one of those girls inside the car. He tried to intervene but the said boys started quarreling with him and thereafter the boys ran away alongwith the kidnapped girl. He could not see their faces due to darkness.
5. PW5 Dr. Yogender Kumar Sharma, CMO RTRM Hospital. He had conducted the medical examination of accused Vinod, Rahul and Ravi on 14.2.2012. He had also preserved the blood samples, semen samples, pubic hair samples, nail clippings and hair samples of all the three accused.
6. PW-6 Sh. Birender Singh, Record Keeper, Transport Department, South Zone, Sheikh Sarai, New Delhi. He proved the record of his office showing that a red colour Indica Car bearing Registration No. DL3CAF4348 is registered in the name of Raj Singh.
7. PW7 Sh. Laxman Rawat. He had came to know on 9.2.2012 at about 9.30 pm that the deceased had been kidnapped in a red colour Indica Car and made a call at telephone No.100 from his mobile phone No.9968587147. He also came to know on 13.2.2012 that the dead body of the deceased was lying near Karawra Phatak. He alongwith SC No.91/13. Page 8 of 62 Kunwar Singh Negi, Prem Singh Negi, Umed Singh Negi and Police reached that spot and identified the dead body of the deceased. They had received the dead body of the deceased from Police on 14.02.2012.
8. PW8 Sh. Kunwar Singh Negi. He is the father of the deceased. He deposed that his daughter had been kidnapped on 09.02.2012 in a red colour Indica Car by some unknown persons when she was returning from Gurgaon alongwith her friends. He came to know on 13.2.2012 that dead body of his daughter was thrown at Karawara Gate. He alongwith Laxman Singh Rawat, Prem Singh Negi, Umed Singh and Police reached there and identified the dead body of his daughter. He had received the dead body of his daughter on 14.2.2012 after the post mortem examination. He also deposed that mobile number 9540594640 was in his name and it was being used by his daughter.
9. PW9 Constable Rakesh Kumar. He alongwith SI Prakash Chand, on receipt of DD No. 27A, reached the spot at Hanuman Chowk, Qutub Vihar from where the deceased had been kidnapped. He also had brought the rukka so prepared by SI Prakash Chand to the police station for registration of the FIR. SI Prakash Chand had recorded the statement of Pooja and Sangeeta in his presence.
10.PW10 Sh. Hariom. He runs a travel agency by the name and style of M/s. Om Tours & Travels and accused Rahul was employed with him as a driver to drive Tata Indica car No. SC No.91/13. Page 9 of 62 DL3CAF-4348 since 01.02.2012 at a monthly salary of Rs. 7000/-. He deposed that Rahul had taken away the said car on 9.2.2012 at 7.45 am to pick a passenger from Vikas Puri and thereafter kept the car with him. Accused Rahul met him alongwith the car on 10.2.2012 at 9 am or 10 am. Since the car was untidy from outside as well as from inside, he gave his another Indica Car of silver colour to accused Rahul for some booking. He had again given the said red colour Indica Car to accused Rahul on 11.2.2012 and it remained with him upto to 13.2.2012. He had handed over his booking/duty register to the Police during the course of investigation. According to him he had purchased the aforesaid Tata Indica car DL3CAF-4348 from Sh. Raj Singh vide sale documents Ex. PW10/B1 to Ex. PW10/B3.
11.PW11 Sh. Triloki. The three accused were residing in a room on the first floor of his house as tenant. One day he had felt that the accused are burning some clothes in the room as there was some smoke emanating from the room. The accused then extinguished the fire by pouring water on it and threw the ashes in a vacant plot near the house. After few days all the accused came to the house alongwith the Police and at their instance the police seized a parat (big plate) in which accused had burnt the clothes and accused also got recovered a polythene bag containing ash.
12.PW12 ASI Rajinder Singh. He was on duty on Emergency Response Vehicle (ERV) on 13.2.2012. He had intercepted the red colour Indica Car bearing No. DL3CAF4348 being SC No.91/13. Page 10 of 62 driven by accused Rahul at Metro Station, Sec. 9, Dwarka. Rahul appeared to be in perplexed condition and failed to produce documents of the car and, therefore, on the basis of suspicion was taken to the police station alongwith the car. He handed over the accused Rahul to the SHO.
13.PW13 Sh. Raj Singh. He is the original owner of red colour Indica Car bearing No. DL3CAF4348 and had sold the same to Sh. Hari Om (PW-10).
14.PW14 Sh. Mahavir Singh. He is resident of village Rodai, District Haryana. On 14.2.2012 Delhi Police officials had come to him alongwith two persons and informed him that a dead body was lying in the fields of his brother. He accompanied them to the said fields where he found the dead body of a female.
15.PW15 HC Bharat Lal. He was the MHC(M) in Police Station Chhawla at the relevant time and has proved various entries made in the malkhana register No.19.
16.PW16 Ms. Laxmi. She was colleague of the deceased and deposed that on 09.02.2012 deceased had left office at Udhyog Vihar, Gurgaon at about 6 pm. Next day, she came to know about the incident.
17.PW17 Sh. Anil Kumar. He was running a shop of building material near Hanuman Chowk and on 9.2.2012, he left his shop at about 9 pm or 9.15 pm. When he reached near SC No.91/13. Page 11 of 62 Hanuman Chowk, he came to know that a girl had been abducted in a red colour Indica Car. He tried to make a call on telephone No.100 from his mobile phone but could not succeed. He took mobile phone of his friend Ajit bearing No. 9716802911 and made a call at telephone No. 100 from the same.
18.PW18 Constable Rajinder. He was posted as Malkhana Munshi in PS Chhawla. On 20.4.2011 He had taken keys of the car No. DL3CAF-4348 from MHC(M) PS Chhawla to PS Jafarpur where the CFSL Team took out the said car from garage and inspected it.
19.PW19 Sh. Shishir Malhotra. He is the Nodal Officer of M/s.Aircel Limited and proved the ownership as well as call detail records of mobile Nos. 8802090923, 9716802911, 7503667769.
20.PW20 Sh. Deepak, the Nodal Officer of M/s. Vodafone Mobile Services Limited. He has proved the reply of his company sent through E-mail to E-mail Id of [email protected] regarding the location of Cell ID 40483.
21.PW21 Sh. Pawan Singh. He is the Nodal Officer of Idea Cellula Limited. He has proved the call detail records as well as location of mobile phone nos.9540594640 and 8750198809 on the night intervening between 09.2.2012 and 10.2.2012.
22.PW22 Sh. Sandeep Choudhary, JTO, BSNL, Panipat, Haryana. He has proved the location of mobile no.
SC No.91/13. Page 12 of 629968988533 on the night intervening between 09.2.2012 and 10.2.2012.
23.PW23 Dr. B.K. Mohpatra, Sr. Scientific Officer (Biology) of CFSL, New Delhi. He has proved his DNA report Ex.PW23/A.
24.PW24 Sh. Kuldeep. He is a hostile witness.
25.PW25 Dr. Kusum Gupta. She had conducted pathological examination of the heart of deceased 'K' and proved her report as Ex.PW25/A.
26.PW26 Dr. Shivangi Parashar. She had conducted the postmortem examination of the dead body of 'K' in Civil Hospital, Rewari, Haryana, and proved the postmortem report as Ex.PW26/A.
27.PW27 Sh. Basant Kumar, Sr. Scientific Officer (Crime), Madhuban, Karnal. He had seen the dead body of 'K' in the Mortuary of Civil Hospital, Rewari and proved his report as Ex.PW27/A.
28.PW28 Sh. R.S. Yadav, JTO, MTNL, Tis Hazari Telephone Exchange. He proved the ownership and call details record in respect of mobile nos.9968988533 and 9968587147.
29.PW29 Ms. Saraswati. She was with the deceased 'K' at the time of incident when 'K' was kidnapped in a red colour Indicar car.
30.PW30 Const. Arun Kumar. He was the photographer in Mobile Crime Team and had visited the spot where dead body had been found in village Rodai, District Rewari, Haryana, on 13.2.2012 and had taken 18 photographs of the spot including the dead body as well as the accused pointing SC No.91/13. Page 13 of 62 out towards the spot. He proved the photographs as Ex.PW30/A1 to Ex.PW30/A18 and the negatives as Ex.PW30/B1 to Ex.PW30/B18.
31.PW31 Sh. Rajbir. A photographer by profession in village Rodai and had taken the photographs of the dead body at the instance of officials of P.S. Rodai. He proved the photographs as Ex.PW31/A1 to Ex.PW31/A6.
32.PW32 HC Omkar Singh. He was the Duty Officer of P.S. Chhawla on 09.2.2012 and had recorded DD No.27A (Ex.PW32/A) and had also registered the FIR. He had also recorded another DD No.17B (Ex.PW32/D).
33.PW33 SI Madan Pal. He was posted as Draftsman in P.S. Dwarka South. He had inspected the spot at village Rodai where the dead body had been found on 23.2.2012 and prepared its scaled site plan Ex.PW33/A. He also visited the spot from where the deceased had been kidnapped, on 20.4.2012 and prepared its scaled site plan Ex.PW33/B.
34.PW34 is HC Vinod. He was posted in P.S. Rodai on 13.2.2012. He alongwith ASI Balwan (PW46) and HC Aman Prakash (PW35) had reached the spot where the dead body was lying and had seen the dead body of a girl lying in the fields. He is the witness to lifting of various articles from the spot by ASI Balwan.
35.PW35 HC Aman Prakash. He was also posted in village Rodai on 13.2.2012. He had accompanied ASI Balwan (PW46) and HC Vinod (PW34) to the spot where the dead body of the girl was lying.
36.PW36 ASI Attar Singh. He was posted as Incharge, Crime Team, South West District, New Delhi, on 13.2.2012. He SC No.91/13. Page 14 of 62 alongwith his staff and police officials of P.S. Chhawla as well as the accused Ravi and Vinod had reached the fields of village Rodai, District Rewari, Haryana, where the accused pointed out the dead body of a girl lying in the fields. He proved his report as Ex.PW36/A.
37.PW37 Const. Ramesh Chand. He also had gone to village Rodai alongwith Crime Team and officials of P.S. Chhawla on 13.2.2012.
38.PW38 Const. Vinod. He also had accompanied the officials of P.S. Chhawla, Crime Team and the accused Ravi and Vinod to village Rodai on 13.2.2012. He had taken video camera from Malkhana and videographed the pointing out proceedings by the same.
39.PW39 HC Kuldeep. He is the witness to arrest all the three accused and their disclosure statements. He is also witness to the seizure of the red colour Indica car. He also had accompanied the other police officials of P.S. Chhawla, Crime Team, accused Ravi as well as accused Vinod to village Rodai on 13.2.2012 and is witness to the proceedings, which were conducted there.
40.PW40 HC Govind. He alongwith Inspector Ranjeet Singh (PW49), HC Mahesh Tyagi (PW43) and accused Rahul had reached the fields in vilage Rodai on 16.2.2012 where the accused pointed out the spot where he alongwith his associates accused Ravi and Vinod had thrown the dead body of 'K' after killing her. He proved the pointing out memo as Ex.PW40/A.
41.PW41 SI Ashok Kumar. He was the investigating Officer of this case on 12.2.2012. He had remained in the investigation SC No.91/13. Page 15 of 62 of this case alongwith SI Sandeep Gupta on 13.2.2012 and is witness to the arrest of the three accused and the pointing out memos prepared at their instance at village Chhawla as well as at village Rodai. He had also taken red colour Indica car from Malkhana, P.S. Jaffarpur Kalan of CFSL, Lodhi Road, New Delhi, on 27.2.2012.
42.PW42 Ms. Sangita. She was the colleague of deceased 'K' and was accompanying her at the time of incident when 'K' was kidnapped in a red colour vehicle.
43.PW43 HC Mahesh Kumar. He had accompanied Inspector Ranjeet (PW49), HC Govind (PW40) and accused Rahul to village Rodai on 16.2.2012 where accused Rahul pointed out the spot where they had thrown the dead body of 'K' after murdering her.
44.PW44 ASI Hari Krishan. He was posted as ASI in Special Staff, South West District, New Delhi, on 16.2.2012. On that day, Dr. S.K. Singla, Incharge, CFSL Team, had inspected the Tata Indica car in the Malkhana of P.S. Jaffarpur Kalan and had lifted some hair strands from its rear seat, which were seized by the IO vide memo Ex.PW44/A. He is also a witness to the seizure of seat cover of the car by the IO vide memo Ex.PW44/B.
45.PW45 SI Prakash Chand. He was posted in P.S. Chhawla on 09.2.2012 and was handed over DD No.27A regarding kidnapping of 'K'. He had prepared rukka on the basis of statement of Saraswati (PW29) and had got the FIR registered. He had also prepared rough site plan of the spot, from where 'K' had been kidnapped.
46.PW46 ASI Balwan Singh. He was posted as ASI in P.S. SC No.91/13. Page 16 of 62 Rodai on 13.2.2012. On receipt of DD No.24, he alongwith HC Vinod (PW34) and HC Aman Prakash (PW35) had reached the fields near Karawara Railway Fatak, Rewari, where they met SHO, P.S. Chhawla, Inspector Sandeep Gupta alongwith his staff and also saw the dead body of a girl lying in mustard fields. He lifted various articles from the spot and prepared inquest papers. He also removed the dead body to Civil Hospital, Rewari, for postmortem. He had got the postmortem of the dead body conducted on 14.2.2012.
47.PW47 SI Jitender Dagar. He was posted in MACT, District South West, New Delhi, on 13.2.2012, but on the directions of the senior officer met Inspector Sandeep Gupta (PW48) in P.S. Chhawla. He is the witness to the arrest of the three accused and their disclosure statements. He is also witness to the pointing out memos prepared on behalf of the three accused in village Chhawla as well as in village Rodai. He is also witness to the other recoveries effected at the instance of the three accused.
48.PW48 Inspector Sandeep Gupta. He was the SHO in P.S. Chhawla, on 13.2.2012 and had conducted the investigation of this case till 15.2.2012 when further investigation was transferred to Special Staff, South West District.
49.PW49 Inspector Ranjeet Singh. He conducted the investigation of this case from 15.2.2012 onwards. He prepared the Charge Sheet in this case.
9. It may also be noted that the Ld. APP for State has also tendered in evidence the FSL reports Ex.PA and Ex.PB.
SC No.91/13. Page 17 of 6210. I have heard Ld. APP, Ld. Defence Counsels Sh. Vikas Padora, Advocate, appearing on behalf of accused Rahul and Ravi and Sh. S.S. Haider, Advocate, appearing on behalf of accused Vinod and have also gone through the entire documentary as well as oral evidence on record. Both Ld. APP as well as Ld. Counsels appearing for the accused have taken me through the voluminous evidence on record in this case.
11. Ld. APP submitted that it is established from the testimony of PW1, PW2, PW4, PW16, PW29 and PW42 that deceased 'K' had been kidnapped in a red colour Tata Indica car in the evening hours of 09.2.2012 and as per the testimony of PW10 accused Rahul was given by him the Tata Indica car of red colour bearing registration no.DL-3CAF-4348 and accused Rahul was apprehended again while driving the said red colour Indica car on 13.2.2012. She further submitted that it is also proved that the dead body of 'K' was discovered in the fields of village Rodai on 13.2.2012 on the pointing out of accused Ravi and Vinod and various articles including a wallet belonging to accused Rahul were lifted from near the dead body. She further submitted that a broken piece of Bumper, which fitted exactly in the Bumper of aforesaid red colour Indica car was also found near the dead body. She further submitted that the location of the mobile phones of all the three accused has been in Haryana during the night intervening between 09.2.2012 and 10.2.2012. She further submitted that as per FSL reports Ex.PA and Ex.PB, the DNA extracted from hair strands found in the Tata Indica car by the FSL team matched with the DNA extracted from the hairs of the deceased found on the sweater which she was wearing and the SC No.91/13. Page 18 of 62 DNA extracted from the Jack and Pana found in the boot of aforesaid Tata Indica car matched with the DNA extracted from the vaginal swab of the deceased. She submitted that the DNA profile extracted from the spots on the seat cover of the said car matched with the DNA of accused Rahul and Vinod and the DNA extracted from the vaginal swab of the deceased matched with the DNA of accused Ravi and Vinod. She submitted that all the aforesaid circumstances proved by the prosecution indicate beyond doubt that the three accused had kidnapped the deceased, gang raped her, killed her and thrown her dead body in the mustard fields in village Rodai. According to her, all the three accused are liable to be convicted.
12. Per Contra, Ld. Defence Counsels strenuously argued that the accused have been falsely implicated in this case and there is no legally admissible evidence on record against them. It was submitted that the Beat Officer, who had brought accused Rahul and Vinod to police station on 13.2.2012, has not been examined as a witness and therefore, it is not clear from the record how and in what circumstances were these two accused brought to the police station. It was further submitted that the evidence on record shows that the dead body of 'K' at village Rodai was first discovered by Haryana Police officials i.e. PW46, PW34 & PW35 and the same was not discovered at the instance of any of the accused as no witness deposed that the accused showed way to the Delhi Police officials upto village Rodai. It was further argued that though from the record, it is proved that the deceased was kidnapped and later murdered but there is nothing in the deposition of any witness to demonstrate that any of the SC No.91/13. Page 19 of 62 three accused had done it. It was argued that no fingerprints had been taken from Jack and Pana found in the boot of red colour Tata Indica car and therefore, it is not established that these were used by any of the accused to kill the deceased. It was further argued that no explanation has been given why accused Rahul, who was arrested first of all, was not taken to village Rodai alongwith accused Ravi and Vinod on 13.2.2012. It was argued that no witness had proved that the purse found the dead body belongs to accused Rahul. It was also argued that since the kidnapping had taken place in pitch darkness, it was not possible for friends of the deceased accompanying her at that time to observe the colour and make of the car. The Ld. Counsels also argued that prosecution has failed to prove motive for the accused to commit the crime. It was urged that the accused are totally innocent and liable to be acquitted.
13. Ld. Counsel for the accused Vinod cited various judgments reported as 2006 (4) LRC 130 (SC) Jaswant Gir vs. State of Punjab, 1998 (1) AD (Cr.) Delhi 437 State vs. Ramesh, 2005 Cri.LJ 1182 Ranjay Kumar Choudhary & anr. vs. State of Bihar, 2008 (4) JCC 2908 Smt. Mula Devi vs. State of Uttrakhand, 2005(1) LRC 332 SC, Sheikh Mehboob and anr. vs. State of Maharashtra and 2007 Cri.LJ 786 Babu Bhai Udesingh vs. State of Gujrat to canvass that the accused cannot be held guilty on mere presumptions and probabilities in the absence of any connecting link in the chain of circumstantial evidence pointing definitely towards the guilt of the accused; in the absence of reliable evidence produced by the prosecution and in view of the failure of the prosecution to examine material SC No.91/13. Page 20 of 62 witnesses and to prove the motive of the crime.
14. I have considered the submissions made on behalf of both the parties.
15. In the instant case though there are eye witnesses to the kidnapping of the prosecutrix in a red colour Tata Indica car but nobody has seen the prosecutrix being kidnapped by any of the three accused. Nobody is eye witness to the rape and murder of the deceased. Thus the case of the prosecution is wholly based upon the circumstantial evidence. Therefore, it has to be kept in mind that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The same should be of a conclusive nature and exclude all possible hypothesis except the one to be proved i.e. the guilt of the accused. The facts so established must be consistent with the hypothesis of the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probabilities, the act must have been done by the accused.
16. In Krishan vs. State represented by Inspector of Police (2008) 15 SCC 430, the Supreme Court after considering a large number of its earlier judgments observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;SC No.91/13. Page 21 of 62
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17. It is manifest beyond doubt from the record and also not disputed from the side of the accused that deceased 'K' was kidnapped in a car in village Chhawla on 09.2.2012 at about 8.45 p.m. when she alongwith her friends PW1, PW29 & PW42 was returning home on foot. It is also evident from the record that the dead body of 'K' was later on found in the mustard fields of village Rodai on 13.2.2012.
18. PW1 has clearly deposed that when she alongwith the deceased, PW29 and PW42 was proceeding on foot from village Chhawla towards their respective homes, a red colour Tata Indica car came from behind, stopped their way and one of the occupants of the car got down and dragged the deceased into the car. She has not been cross examined on the aspect of colour of the car.
SC No.91/13. Page 22 of 6219. PW29 too has deposed that the deceased was dragged inside a red colour Indica car. In the cross examination, she deposed that she cannot say with certainty that it was an Indica car. However, she too has not been questioned regarding the colour of the car in her cross examination. PW42 also has deposed that the deceased was kidnapped in a red colour vehicle. In her cross examination, she has deposed that she had noticed the colour of the vehicle to be red. Moreover, PW4 is also an eye witness to the kidnapping incident. He has deposed that on 09.2.2012 when he had got down from bus from Gurgaon at Sumesh Vihar Bus Stand, Chhawla and was returning home at about 8 p.m. He saw a red colour Indica car going towards Qutub Vihar, Chhawla. 3/ 4 girls were walking ahead the car and three boys were sitting in the car. According to him, the car was stopped near one Dairy and the occupants dragged one of those 3/ 4 girls inside the car. The girls raised alarm. He reached the spot. He saw one of the boys standing on the road. He tried to intervene but the said boy started quarrelling with him and thereafter those boys ran away alongwith kidnapped girl. He went to his Colony and informed the residents about the incident. He has not been cross examined at all on behalf of the accused.
20. The deposition of PW2 is also relevant in this regard. He is the brother of PW1. As per her deposition, he had received a call from his sister telling him that some persons had kidnapped her friend i.e. deceased 'K' in a red colour Indica car. PW1 has also deposed that immediately after the deceased was dragged inside the red colour Indica car, she made a call to his brother i.e. PW2. Further as per the deposition of PW17, he closed his shop at SC No.91/13. Page 23 of 62 Hanuman Chowk on 09.2.2012 at about 9.15 p.m. and when he reached near Hanuman Chowk, he saw a crowd of 10 - 15 persons and came to know that a girl had been kidnapped in a red colour Indica car. He tried to make a call at telephone no.100 from his mobile phone but call could not be connected. Thereafter he took mobile phone of his friend Ajit and made a call at telephone no. 100 from his mobile no.9716802911. He has not been cross examined on this aspect by the Counsels for the accused. It is pursuant to this call that DD No.27A Ex.PW32/A had been recorded in the police station. This was the first information about the incident of kidnapping received in the police station. The DD Ex.PW32/A also mentions that a girl has been kidnapped in a red colour Tata Indica car. At that time, the identity of the assailants was not known to anybody and therefore, there was no reason for any of these witnesses to tell the colour and make of the car falsely as a red colour Tata Indica car.
21. In view of the testimony of aforesaid witnesses, there remains no doubt that the deceased had been kidnapped in a red colour Tata Indica car. However, none of these witnesses could notice the registration number of the car or the facial features of the assailants.
22. The fact that the red colour Tata Indica car bearing registration no.DL-3CAF-4348 was in the custody of accused Rahul on 09/10.2.2012 has been proved by PW10. He runs a travel agency by the name M/s. Om Tours & Travels and had purchased the said car from its original owner Sh. Raj Singh (PW13). PW13 has confirmed this fact in his testimony. According to PW10, SC No.91/13. Page 24 of 62 accused Rahul was employed by him as a driver for the aforesaid Tata Indica car since 01.2.2012 at a monthly salary of Rs.7,000/-. He further deposed that on 09.2.2012 accused Rahul had taken away the said car at about 7.45 a.m. to pick up one Sh. S.N. Gupta from Vikaspuri and thereafter he took the car alongwith him to his house. Accused Rahul met him on 10.2.2012 at about 9/10 a.m. alongwith said Indica car. He noticed that this car was untidy from outside as well as from inside and not in a position to be sent for booking. So he gave his another Indica car of silver colour to accused Rahul for some booking. He further deposed that on the night of 11.2.2012, he again handed over the aforesaid red colour Tata Indica car to accused Rahul near MTNL office, Sector-6, Dwarka, and had remained with Rahul upto 13.2.2012. He proved the copy of sale letter etc. in respect of the aforesaid car as Ex.PW10/B1 to Ex.PW10/B3. He also proved the register maintained by him in the office and which had been seized by the police as Ex.PX and further stated that the entry dated 09.2.2012 regarding handing over of said Indica car to accused Rahul is at point A at page no.50. In the cross examination, he deposed that he had not issued any appointment letter to accused Rahul and denied that the car did not ply on road from 09.2.2012 to 13.2.2012. He also denied that he had got the said car cleaned and washed in the morning of 10.2.2012. He further deposed that on that day i.e. 10.2.2012 the car remained in his office till 3 p.m. and then he alongwith his wife went to Talkatora Stadium in the same to watch a function organized by the school of his children. They did not notice any blood stains or any other articles in the car. He also deposed that the said car was not sent for any repair between 10.2.2012 and 13.2.2012 as no repair was required. Its SC No.91/13. Page 25 of 62 Bumper had become loose which he had tightened himself. He also deposed that he had himself cleaned the car on 11.2.2012 and thereafter took the same for some other booking and did not notice any foreign object inside the same.
23. The testimony of PW10 establishes the fact that the red colour Tata Indica car bearing registration no.DL-3CAF-4348 was in the custody of accused Rahul from 7.45 a.m. on 09.2.2012 till 9 a.m. on 10.2.2012 and also from 11.2.2012 to 13.2.2012.
24. PW12 was posted on duty in Emergency Response Vehicle (ERV) on 13.2.2012 alongwith staff in the area of P.S. Sector-23 Dwarka. He deposed that while patrolling at about 12 noon when they reached Sector-9, Dwarka, he got down from the vehicle and soon a red colour Tata Indica car bearing registration no.DL-3CAF-4348 stopped at Metro Station. According to him, a message was being flashed from the Control room for the last three days that some boys had taken away a girl in red colour Indica car and the vehicle is to be intercepted and reported to the concerned SHO. He deposed that the driver of aforesaid Tata Indica car appeared in perplexed condition and failed to produce the documents of the vehicle saying that those are in other vehicle. The driver disclosed his name as Rahul and on suspicion basis, he took him alongwith the car to P.S. Chhawla and produced him before the SHO, P.S. Chhawla Inspector Sandeep Gupta. He identified accused Rahul in the court at the time of his testimony. He also identified the red colour Tata Indica car bearing registration no.DL-3CAF-4348. There is nothing worth mentioning in her cross examination.
SC No.91/13. Page 26 of 6225. Regarding the arrest of the three accused in this case, PW48 has deposed that on 13.2.2012, ASI Rajender Singh (PW12) from P.S. Sector-23, Dwarka, reached the police station and produced accused Rahul before him. PW12 told him that he had apprehended accused Rahul in Tata Indica car bearing registration no.DL-3CAF-4348 on suspicion basis. He interrogated accused Rahul and during the course of sustained interrogation, accused Rahul has admitted his involvement in this case alongwith his brother Ravi and friend Vinod. Thereafter, he took over the investigation of this case himself. He again interrogated accused Rahul and arrested him vide memo Ex.PW41/A and also recorded his disclosure statement Ex.PW39/B. He seized the car which accused Rahul was driving vide seizure memo Ex.PW39/B. At the instance of accused Rahul, he recovered one Jack and one Pana from the boot of the car which he seized vide seizure memo Ex.PW39/E. He further deposed that on the same day i.e. 13.2.2012 the Beat Constable of Beat no.3 produced the other two accused namely Ravi and Vinod before him. He interrogated them and arrested them vide arrest memos Ex.PW41/B and Ex.PW41/C. He also recorded their disclosure statements Ex.PW39/A and Ex.PW39/C respectively. He took into possession the mobile phones of accused Rahul and accused Ravi vide seizure memos Ex.PW39/L and Ex.PW39/M respectively. In the cross examination conducted on behalf of accused Rahul and Ravi, he deposed that PW12 was not a witness to the arrest memo of accused Rahul as he had left the police station by the time Rahul was arrested. In the cross examination conducted on behalf of accused Vinod, he deposed that he did not record the statement of Beat Constable, SC No.91/13. Page 27 of 62 who had brought accused Ravi and Vinod to the police station. He also did not recollect the name of that Beat Constable. There is no further cross examination of this witness on this aspect.
26. PW39, PW41 and PW47 are witnesses to the arrest of the three accused and their disclosure statements. They are also witnesses to the seizure of Tata Indica car as well as Jack and Pana from its boot. They had identified the accused and the Jack as well as Pana at the time of their testimony in the court. However, the Tata Indica car bearing registration no.DL-3CAF-4348 had not been shown to them in their testimony. They have also deposed that accused Ravi and Vinod were brought to the police station by Beat Constable but could not tell his name. All the aforesaid witnesses including PW48 have deposed that first accused Rahul was arrested, his disclosure statement was recorded and thereafter the other two accused were brought to the police station by the Beat Constable and were arrested. It is the case of the prosecution that the names of accused Ravi and Vinod figured in the disclosure statement of accused Rahul and therefore, they were ordered to be brought to the police station. It is not disputed that accused Rahul had not taken name of accused Ravi and Vinod in his disclosure statement.
27. The timings of the arrest of the three accused as mentioned in their arrest memos and the timings of their making respective disclosure statements have remained undisputed from the side of the accused. The arrest memos show that the accused Rahul was arrested at 2 p.m., accused Vinod at 2.45 p.m. and accused Ravi at 3 p.m. Therefore, it stands proved that first of all, SC No.91/13. Page 28 of 62 accused Rahul was arrested in this case when he was produced before PW48 by PW12, who had seen him driving the Tata Indica car bearing registration no.DL-3CAF-4348. Thereafter pursuant to his disclosure statement, in which he had taken the names of accused Ravi and Vinod to be his partners in crime, these two accused were brought to the police station by the Beat Constable and were arrested. In view of this proved factual position, I consider that non examination of the Beat Constable as a witness does not affect in any manner the case of the prosecution in this regard.
28. Even otherwise also, accused Ravi and Vinod have admitted during questioning u/s.313 Cr.PC that they were lifted by police officials from their house on 13.2.2012 and brought to the police station. (see answers to Q.No.29 by both the accused). It is nowhere their case that they were not apprehended or asserted in this case on 13.2.2012. They also don't say that accused Rahul had come to police station after their arrest.
29. It may be noted here that after the seizure of the Tata Indica car no.DL-3CAF-4348, which accused Rahul was driving, by PW48 vide seizure memo Ex.PW39/D, a Jack and Pana were recovered from its boot which are Ex.X-8 and X-9 respectively. These were seized by PW48 vide seizure memo Ex.PW39/E. The recovery of these two articles from the said car cannot be doubted as neither has PW10, the owner of the car, stated that there was no Jack or Pana in the boot of his car nor has accused disputed the said fact. Evidence further reveals that the said Jack and Pana alongwith other exhibits were later on sent to CFSL, Lodhi Road, SC No.91/13. Page 29 of 62 for DNA profiling where these were examined by PW23 who has proved his report as Ex.PW23/A. The accused have admitted the correctness of the DNA report Ex.PW23/A as they have not cross examined PW23 at all. The report shows that blood was detected on the said Jack and Pana, the DNA of which was found to be similar to the female DNA extracted from the vaginal swab and anal swab of the deceased. Thus the blood on the Jack and Pana was that of the deceased 'K'.
30. As per the testimony of PW48, he recorded the disclosure statements of all the three accused. No question has been put to him in this regard in his cross examination. PW39 and PW47 are witnesses to those disclosure statements, which were recorded in the police station. PW39, in his cross examination has deposed that first the disclosure statement of accused Rahul was recorded which was ready by 2.30 p.m. and the disclosure statements of the other two accused were ready by 3.15 p.m. PW47, in his cross examination has deposed that first disclosure statement of accused Rahul was recorded, thereafter that of Vinod and lastly that of Ravi. There is no contradiction or inconsistency in the testimony of these three witnesses regarding the time, manner and sequence of recording the disclosure statements of the accused which are Ex.PW39/A (Vinod), Ex.PW39/B (Rahul) and Ex.PW39/C (Ravi).
31. It appears that the police came to know from these disclosure statements that these three accused had kidnapped, gang raped and killed the deceased 'K' and had thrown her dead body in the fields in village Rodai. The disclosure statements also SC No.91/13. Page 30 of 62 revealed that they had executed the crime in red colour Tata Indica car bearing registration no.DL-3CAF-4348. All the three accused have stated in their disclosure statements that they can show the spot where they had thrown the dead body of 'K' and can recover the dead body.
32. PW37, PW38, PW39, PW41 and PW47 had accompanied PW48 (IO) and the two accused Ravi and Vinod to village Rodai, Haryana in the evening of 13.2.2012. The Incharge, Crime Team South West (PW36) and its photographer (PW30) also accompanied police team to village Rodai on that day. Before proceeding to the village Rodai, PW48 alongwith PW37, PW38, PW39, PW41 and PW47 alongwith the two accused Ravi and Vinod where the accused pointed out the spot from where they had kidnapped the girl 'K'. From there, they returned to the police station and then alongwith Crime Team and the two accused Ravi and Vinod proceeded to village Rodai. In this regard, PW48 has deposed as under :
".....Thereafter I alongwith SI Jitender Dagar, SI Prakash Chand, HC Kuldeep, Const. Ramesh and Const. Vinod took all the three accused to the spot of incident i.e. road leading from Chhawla village to Qutub Vihar. All the three accused pointed out the accused wherefrom they kidnapped the deceased girl. The pointing out memos are already Ex.PW41/G, Ex.PW41/H and Ex.PW41/I all bearing my signature at point C. From that spot, we returned to the police station. I deposited the case property in the Malkhana.SC No.91/13. Page 31 of 62
I apprised the senior officers about the circumstances of the case. I also summoned Crime Team to the police station.
After taking permission from my senior officers, I alongwith SI Jitender Dagar, HC Kuldeep, Const. Ramesh, Const. Vinod, SI Ashok Kumar took accused Ravi as well as Vinod to P.S. Rodhai, District Rewari, Haryana. I had left accused Rahul in the police station in the custody of SI Prakash Chand. Crime Team was also with us. On reaching Rodhai, both the accused Ravi and Vinod pointed out separately to a dead body in the fields on the left side of the road leading from Rodhai to Karwara village. Pointing out memos are already Ex.PW14/B and Ex.PW14/C both bearing my signatures at point E. Both the accused also pointed out another spot in the fields where they had broken a 'Matka' on the head of the deceased. The pointing out memos are Ex.PW14/A and Ex.PW37/A both bearing my signature at point D. I got the spots photographed by photographer of the Crime team and also prepared a rough site plan of the spot which is Ex.PW48/A bearing my signature at point A. ....."
33. In his cross examination, PW48 has deposed that the field, in which the dead body was found belonged to Rohtash, whose brother Mahavir had reached the spot alongwith other villagers and his statement was recorded. Mahavir appearing as PW14 has corroborated the testimony of PW48 in this regard.
SC No.91/13. Page 32 of 62PW14 has not been cross examined on this aspect. The testimony of PW37, PW38, PW39, PW41 and PW47 also is consistent and in sync with that of PW48 regarding the fact that the dead body of 'K' was recovered from the fields of village Rodai at the instance of accused Ravi and Vinod. The Ld. Defence Counsels have failed to point out any contradiction in the deposition of these witnesses with regard to this fact or any other thing to suggest that the dead body was not recovered at the pointing out of the accused Ravi and Vinod.
34. The photographs Ex.PW30/A1 to Ex.PW30/A18, taken by PW30, also show the two accused Ravi and Vinod pointing towards the dead body in a field. The testimony of PW30 and that of PW36, also corroborates the deposition of PW48 regarding the recovery of dead body.
35. It was argued with vehemence by the Ld. Counsels for the accused that infact the dead body was first discovered by the Haryana Police officials, who found purse of dead body near it disclosing the identity of deceased and thus informed family of deceased who in turn informed PW48. It was submitted that after getting the information about the discovery of dead body of deceased 'K', as aforesaid, PW48 took accused Ravi and Vinod to that spot in village Rodai and falsely projected that the dead body was recovered at their instance. I am unable to countenance these submissions of the Ld. Defence Counsels. There is no evidence on record to back these arguments. These submissions are based merely upon conjectures and assumptions only.
SC No.91/13. Page 33 of 6236. All the aforementioned witnesses i.e. PW30, PW36, PW37, PW38, PW39, PW46, PW47 and PW48 have consistently deposed that they had reached the spot where dead body was lying before the arrival of Haryana police officials and nothing contrary could be elicited in their cross examination. The deposition of PW8, the father of the deceased, PW3 and PW7 reveals that they had reached village Rodai separately on getting the information that dead body of 'K' was found at Karawara Chowk. Though they have not stated who informed them about the dead body but it is noticeable that it has not been suggested to them in cross examination that they had got this information from Haryana police officials. Further PW34, PW35 and PW46 of P.S. Rodai, who on receipt of DD No.24, had reached the spot where dead body was lying, have categorically deposed that Delhi police officials were already present at the spot when they reached there. There is nothing in their cross examination to suggest that they had discovered the dead body of 'K' before the arrival of Delhi Police officials or that they had informed the father of the deceased (PW8) about the dead body of the daughter.
37. Therefore, I do not find any substance in the argument that the dead body of 'K' was not recovered at the instance of the accused Ravi and Vinod. It is proved that the fact that the dead body was lying in the fields at village Rodai was obtained by the police from the disclosure statements of the accused and the dead body was also discovered lying in those fields pursuant to the disclosure statements. Thus the relevant portion of their disclosure statements becomes admissible in evidence in view of section 27 of the Evidence Act. Therefore, it is proved that the accused has SC No.91/13. Page 34 of 62 knowledge about the fact that the dead body of 'K' is lying in the field at village Rodai and they pointed out the dead body to the police.
38. It was submitted on behalf of accused Rahul that since nothing was recovered pursuant to to his disclosure statement as he had not been taken to village Rodai on 13.2.2012, his complicity in this case becomes doubtful. I am not impressed with these submissions of the Ld. Counsel for various reasons which would follow hereinafter. Even though I too feel it intriguing as to why accused Rahul was also not involved in the discovery of dead body on 13.2.2012 and why was he left at the police station, yet I find enough evidence on record which links him to the offence involved herein. It is not discernible from the record as to why accused Rahul was left at police station, even as he was the first person to be arrested. The investigating officer (PW48) has failed to assign any satisfactory reason for his such unusual conduct. However, it being a settled law that any error or lapse on the part of IO cannot be made a ground to throw out prosecution case when there is sufficient evidence on record regarding complicity of accused in the case, the accused herein cannot take advantage from the inefficient handling of the investigation by the IO (PW48).
39. Before proceeding further, it may also be noted that evidence on record shows that accused Ravi and Vinod had pointed out another spot where an earthenware pot 'Matka' was lying in broken condition which they had smashed on the head of the dead body. The 'Matka' can be seen in the photograph Ex.PW31/A2. So the related portion of the disclosure statement of SC No.91/13. Page 35 of 62 the accused becomes admissible in evidence.
40. It also needs note that the whole pointing out proceedings were videographed by PW38 in order to clear every air of doubt about the genuineness of these proceedings. The videography is in addition to the photographs taken by PW31. PW46 also had called a private photographer to the spot, who is PW30. He too has taken photographs of the dead body and around it.
41. PW48 has deposed that when PW46 alongwith staff of P.S. Rodai reached the spot where dead body and 'Matka' were lying, he showed both the spots as well as dead body to them and further proceedings were conducted by them. PW48 alongwith staff and the two accused Ravi and Vinod returned to Delhi.
42. As per the deposition of PW46, corroborated by PW34 and PW35, he lifted two plastic glasses, one earthenware pot (Matka), one empty pouch of Namkeen (snacks), one broken piece of bumper of a vehicle and one red colour purse containing Rs. 365/- in cash. He also lifted the blood stained soil & earth control from the spot and hair strands from the body of deceased. He put these in separate pullindas, sealed those with the seal of 'B' and seized vide seizure memo Ex.PW34/A. He further deposed that ATM Card in the name of Rahul, another ATM Card, photocopy of PAN Card, original driving licence in the name of Rahul, school identity cards in the name of Rahul, some visiting cards, a receipt of some medicines and one newspaper cutting on which two mobile numbers were written, were found contained in the purse.
SC No.91/13. Page 36 of 62Two plastic glasses and one empty Namkeen pouch of brand 'Tauji' are Ex.X-1 (colly), broken pieces of 'Matka' are Ex.X-2 (colly), the piece of bumper is Ex.X-3 and the read colour purse alongwith its aforesaid contents is Ex.X-4. All these were identified by PW34, PW35 and PW46 during the course of their deposition in court.
43. No question regarding the lifting of these articles at the spot has been put to PW46 in his cross examination. Only one suggestion has been given to PW34 and PW35 in their cross examination that the seizure memo prepared by PW46 does not bear the signature of any Delhi Police official which he admitted as correct. It is true that seizure memo Ex.PW34/A prepared by PW46 is not signed by any Delhi Police official. PW48 (IO) has himself testified that he alongwith his staff left for Delhi after showing the spot and the dead body to PW46 and further proceedings were conducted by PW46. Therefore, the seizure of aforesaid articles from near the dead body by PW46 cannot be doubted. The contention of accused Rahul in his statement u/s.313 Cr.PC that his purse and other documents were taken by police officials at the time of his arrest and were planted near the dead body cannot be countenanced. As noted herein-above, the police, at the time of arrest of accused Rahul, was not aware about the location of the dead body of the deceased and the circumstances, in which she had been killed. These facts came to the knowledge of the police only after recording the disclosure statement of accused Rahul. Therefore, there was no occasion for Delhi Police to take away the belongings of accused Rahul and to plant those near the dead body. It may also be noted in this regard that the other two SC No.91/13. Page 37 of 62 accused i.e. Vinod and Ravi have nowhere stated that they had seen the police officials planting the wallet of the accused Rahul near the dead body.
44. In my opinion, the prosecution has proved beyond doubt that the dead body of the deceased was recovered from the fields in village Rodai on 13.2.2012 at the instance of accused Ravi and accused Vinod. It has also been proved beyond doubt that a red colour purse belonging to accused Rahul and containing his ATM cards, original driving licence etc. were lifted from near the dead body of deceased 'K'.
45. The prosecution has also established by way of testimony of the aforesaid witnesses that a piece of bumper of a car (Ex.X-3) was found near the dead body of 'K'. The report of CFSL, Lodhi Road, Ex.PA, shows that the broken edges of the said bumper piece Ex.X-3 matched with the broken edges of the front bumper of the Tata Indica car bearing registration no.DL-3CAF-4348 and they physically fit into each other. The scratches present alongwith the edges of the bumper piece correspond to the scratches present on the edges of the front bumper of the aforesaid car. Both were of similar colour. It has been opined that the bumper piece Ex.X-1 is of the aforesaid car bearing registration no.DL-3CAF-4348, which was being driven by accused Rahul. It was submitted on behalf of accused that the aforesaid bumper piece of the car has also been planted near the dead body by the police in order to implicate the accused falsely. In this regard, reliance was placed upon the testimony of PW10, who has stated in his cross examination that the said Tata Indica SC No.91/13. Page 38 of 62 car bearing registration no.DL-3CAF-4348 was not sent for any repair between 10.2.2012 and 13.2.2012 as no repair was required. He has also deposed that the front bumper of the car had become loose which he had tightened himself. In this regard, it can be said with certainty that the PW has deposed falsely in order to shield accused Rahul, who was working as driver under him. Where was the occasion for the police to smash the front bumper of the Tata Indica car bearing registration no.DL-3CAF-4348, which was seized from accused Rahul and to take it alongwith them to village Rodai when they did not know at that time as to whether or not the dead body of the kidnapped girl would be found there. The accused Vinod and accused Rahul had also nowhere stated in their examination u/s.313 Cr.PC that the police officials were carrying the said bumper piece alongwith them from the police station and they had seen them planting the same near the dead body.
46. It has already been noted that a Jack and Pana were recovered from the boot of the aforesaid Tat Indica car, which were seized from the accused Rahul at the time of his arrest on 13.2.2012. The DNA report Ex.PW23/A shows that the blood was detected on the said Jack and Pana and when the blood was subjected to DNA examination, it exhibits female DNA profile which was found similar to the female DNA profile generated from the vaginal swab and anal swab of the deceased. This demonstrates that the blood on the Jack and Pana was that of the deceased, which leads to the conclusion that she had been hit and killed by the same.
SC No.91/13. Page 39 of 6247. It has further come in the deposition of PW48 that on 14.2.2012, he alongwith PW37, PW38, PW39, PW47 and the three accused reached the house no.RZ-54, Palam Vihar, Sector-6, Dwarka, New Delhi, where the accused was residing as a tenant. He further deposed that accused Rahul got recovered a polythene bag from a plot of land adjacent to the aforesaid house containing some ashes saying that these are the remains of the clothes of the deceased which they had burnt. He seized the ashes vide memo Ex.PW39/G. He further deposed that accused Vinod had got recovered a panty from same plot of land saying that it belongs to the deceased girl and the same was seized vide memo Ex.PW39/H. He further deposed that accused Ravi got recovered a steel Parat from his tenanted room in the said house saying that they had burnt the aforesaid articles of the deceased girl in the same. Parat was seized vide memo Ex.PW39/I. He further deposed that thereafter accused Rahul led them to Safdarjung Enclave where he got recovered the broken pieces of a mobile phone from amongst the bushes on the central verge in front of the road near Kamal Cinema Hall near Rajinder Dhaba saying that it belongs to deceased 'K'. He seized the mobile phone vide memo Ex.PW39/K. In the cross examination, he deposed that the aforesaid articles, except the mobile phone of the deceased, were recovered by the accused in the presence of Trilok, the landlord of the house, but he showed his reluctance in signing the seizure memo as witness. In further cross examination on behalf of accused Vinod, he deposed that many people had gathered at the spot when they reached there but none was willing to join the investigation despite request. He denied the suggestion that there is no vacant plot adjacent to house no.RZ-54, Palam Vihar.
SC No.91/13. Page 40 of 6248. The testimony of PW48 regarding the recovery of aforesaid articles at the instance of all the three accused is fully corroborated by that of PW39 and PW47. Nothing contrary has been elicited in the cross examination of these witnesses. Therefore, I see no reason to doubt the recovery of these articles at the instance of these three accused. Hence it is established beyond doubt that the three accused knew that the clothes of the deceased had been burnt in the steel Parat Ex.X-10, they also knew that the panty of the deceased Ex.X-13 is lying in the vacant plot adjacent to the house no.RZ-54, Palam Vihar, in which they were residing as a tenant. Further it is also established beyond doubt that accused Rahul was aware about the place in Safdarjung Enclave where the broken pieces of the mobile phone of the deceased were lying. In view of the same, the relevant portion of the disclosure statements of the three accused become admissible in evidence.
49. Though accused Vinod has stated in his examination u/s.313 Cr.PC that he was not residing alongwith accused Ravi and Rahul in House No.RZ-54, Palam Village, Sector-6, Dwarka, New Delhi, PW11 has very clearly deposed that all the three accused were residing in the aforesaid house as tenant in a room on the first floor. He has further deposed that after 3 to 4 days of inducting the accused as tenant in his house, he felt that they were burning the clothes in the room and smoke was emanating from the room, to which his wife objected. The accused extinguished fire by pouring water and threw the ashes in the vacant plot near the house. He had asked the accused to give him SC No.91/13. Page 41 of 62 their identity proof for the purpose of tenant verification but they told him that they would provide the same to him after returning from their village. He further deposed that after few days all the accused persons alongwith police came to the house and at the instance of the accused, the police officials seized a Parat, in which the accused had burnt the clothes and also seized the ash in a polythene bag. He also deposed that the police had also seized one cloth at the instance of accused persons. There is nothing in his cross examination to suggest that he has deposed falsely or that he is a planted witness. His presence in the house at the time when the accused were burning the clothes and at the time when the accused got recovered the aforementioned articles, is natural as he is the landlord of the house, leading a retired life, his age being 65 years. Hence the deposition of this witness also corroborates the testimony of PW39, PW47 & PW48 regarding the recovery of Parat, ashes and panty of the deceased at the instance of the three accused. PW11 is an independent witness to these recoveries and therefore, strengthens the case of the prosecution in this regard.
50. The testimony of PW40, PW43 & PW49 demonstrates that accused Rahul had on 16.2.2012 pointed out the spot in village Rodai where they had smashed the head of the deceased by a 'Matka' and the spot where they had thrown the dead body of deceased 'K' after killing her. However, pointing of these two spots by the accused Rahul is totally insignificant for the reason that these two spots were already pointed to the police by accused Ravi and Vinod on 13.2.2012.
SC No.91/13. Page 42 of 6251. The postmortem of the dead body of the deceased 'K' was conducted by PW26 in Civil Hospital, Rewari, Haryana. As per the postmortem report prepared by her, following external injuries were found on the dead body of the deceased :
1. Swelling over right parietal region.
2. Lacerated wound of size 2 cm x 1 cm on right parietal region.
3. Lacerated wound 1 cm x .5 cm on lateral angle of right eye.
4. Contusion and swelling over right side of face with under lying acchymosis.
5. Contusion over right anterior side of neck, upper one third of size 10 cm. in length and 5 cm in width on lateral side and 2 cm. on medial aspect.
6. Superficial incised wound two in number extending from middle of neck going downwards laterally to the right (6 cm in length).
7. Bilateral swelling of eyes with congestion in right eye.
8. Superficial incised wound extending from middle of abdomen of size 12 cm. going laterally to the right with tailing on right side (3 cm below umblicus)
9. Superficial horizontal incised wound of size 11 cm. on left side of abdomen ( 2 cm. below umblicus).
10.Superficial horizontal incised wound of size 18 cm in length 4 cm in width above umblicus).
11.Contusion on bilateral knees.
12.Multiple contusion of various length on right leg anterior aspect.
13.Abrasion of 1 cm x 1 cm on middle of the left leg SC No.91/13. Page 43 of 62
14.abrasion of 1 cm x .5 cm on just above injury No.13.
15.Two horizontal post mortem burns of size 10 cm x 2.5 cm.
on right side of umblicus and 9 cm x 2 cm on left side of umblicus.
16.Reddish contusion around right nipple with post mortem burns on bilateral nipples.
17.Circular postmortem burns 4 in number of size ½ cm. in diameter, two on each side on both side of umblicus.
18.Dry and clotted blood present over the face and bilateral nostril . On disection fracture of right maxilla present.
19.Contusion over left clavicular area. On dissection underlined achymosis present with dislocation of sterno clavicular joint- rigor mortis present in lower limb in passing stage. Post mortem staining on dependent parts.
20.Small white eggs present in left eye.
52. According to PW26, she also found that hymen of the deceased was ruptured and bleeding was present in the vagina. She has opined the cause of death as head injury which was ante- mortem in nature and sufficient to cause death in normal course of nature. She has further deposed that she handed over following things to the police officials :
1. a well stitched dead body after the postmortem.
2. Original post mortem report No. SP/09/12/GMR
3. a sealed carten with seven seals containing sealed jar one seal having (a) stomach , large intestine, small intestine
(b) lung, liver, spleen, kidney (c) blood from heart (d) SC No.91/13. Page 44 of 62 preservative used.
4. A sealed envelop with five seals containing (a) forwarding letter (b) copy of postmortem report (c) original police papers (d) sample seals
5. a sealed jar with five seals containing heart as a whole for histopathological examination.
6. A sealed envelop with five seals containing (a) forwarding letter (b) sample seal (c) copy of PMR
7. a sealed box with five seals containing two plastic containers having nails for FSL examination.
8. A sealed envelop with five seals containing forwarding letter to FSL for nail examination and copy of PMR with sample seal.
9. A sealed plastic container with one seal containing hairs of the person.
10. A sealed pullinda with seven seals containing two slides and two swabs from vaginal and cervical region and two slides and two swabs from rectum for FSL examination.
11. A sealed envelop with five seals containing forwarding letter, copy of PMR and sample seal.
53. PW26 further deposed that on 23.2.2012 two sealed pullindas were produced before her by PW49 for subsequent opinion. One of the pullindas contained a heavy car Jack made of iron and the second one contained an iron rod (Pana), 'L' shaped and blunt on both ends. Vide opinion Ex.PW26/B, she opined that the injuries mentioned in the postmortem report found on the body of the deceased 'K' could have been inflicted by these two iron objects. In the cross examination, she denied that the death SC No.91/13. Page 45 of 62 would not occur as a result of the head injury found on the dead body. She deposed that dry mud was present on the clothes and hairs of the girl and that they had not seen any old injury on the dead body. She admitted that there was no injury on the private part of the deceased except that the bleeding was present in vagina. She stated that it is possible that the bleeding could have been due to mensuration.
54. The deposition of PW26 as well as postmortem report Ex.PW26/A demonstrates that there were multiple injuries throughout on the body of the deceased including incised wound, lacerated wound, swelling, burn marks, contusions, abrasions etc. The injuries give an impression that the deceased had been brutally beaten and hit with iron objects as well as a hot object. The postmortem report further shows that the deceased breathed her last on account of the head injury, which was antemortem in nature. One noticeable fact is that no opinion regarding the rape or sodomy has been given in the same. To this extent, the Ld. Defence Counsels are right in submitting that the postmortem report Ex.PW26/A does not show that the deceased 'K' had been raped or gang raped before the murder. It is also manifest from the testimony of PW26 that the injuries found on the dead body of the deceased could be possible by the jack and Pana, which were recovered from the boot of Tata Indica car bearing registration no.DL-3CAF-4348.
55. PW49 was the Investigating Officer of this case with effect from 15.2.2012 as the investigation had been transferred to Special Staff, Delhi Police, South West District. As per his SC No.91/13. Page 46 of 62 deposition, he called a team from CFSL, Lodhi Road, on 16.2.2012 to inspect the Tata Indica car bearing registration no.DL-3CAF-4348. He deposed that a team headed by Dr. A.K. Singla reached P.S. JP Kalan where the said Tata Indica car bearing registration no.DL-3CAF-4348 had been kept. MHC(M), P.S. Chhawla, handed over the keys of the car to Dr. A.K. Singla, who alongwith his team inspected the car from inside as well as outside. He deposed that Dr. Singla lifted some hair strands from the rear seat of the car, handed over those to him in a Khaki colour envelope, which he seized vide memo Ex.PW44/A. On the instructions of Dr. Singla, he also seized 10 seat covers and 4 footmats of the car vide seizure memo Ex.PW44/B. In the cross examination, he deposed that the car was checked by Dr. Singla in his presence and Dr. Singla lifted a hair strand from its rear seat. He deposed that Dr. Singla was having his kit with him and conducted deep and proper inspection of the car using the tool in his kit. Dr. Singla did not tell him that he noticed blood spot and semen spot on the seat covers of the car. He admitted that when he saw the Tata Indica car in P.S. JP Kalan, there was no seal on its door lock and the keys of the car produced by MHC(M) were not contained in any sealed pullinda. He deposed that it is possible that the car could have been opened by those keys by any person, who was in possession of the keys. He admitted that he also did not seal the door locks of the car or the keys after the inspection. He denied the suggestion that the seat covers Ex.P-15 were not taken from the Tata Indica car bearing registration no.DL-3CAF-4348. According to him, the Tata Indica car had been parked at very distant place from the main building of P.S. JP Kalan and therefore, there was no public person available at that place.
SC No.91/13. Page 47 of 6256. PW44 was also present in P.S. Chhawla on 16.2.2012 when Dr. Singla had inspected the car. His testimony is in sync with that of PW49 and nothing contrary has been elicited in his cross examination. Therefore, it is proved from the testimony of these two witnesses that Dr. Singla from CFSL, Lodhi Road, had inspected the Tata Indica car bearing registration no. DL-3CAF-4348 in P.S. JP Kalan on 16.2.2012 and lifted some hair strands from its rear seat. It is also proved that on his directions, PW49 seized the 10 seat covers and 4 footmats of the car.
57. The DNA report Ex.PW23/A shows that the DNA profile generated from the aforesaid hair strands lifted by Dr. Singla from the rear seat of the car was found to be female in origin and consistent with the DNA profile generated from hair strands found on the sweater of the deceased and the DNA generated from both of these hair strands was found to be similar to the female DNA generated from the vaginal swab and anal swab of the deceased. It is therefore amply clear that the hair strands lifted by Dr. Singla from the rear seat of Tata Indica car belonged to the deceased. The report further shows that there was a blood spot on one of the seat covers and semen spots were detected on two of the seat covers. The DNA profile generated from the male fraction DNA of the semen spots was found to be consistent with DNA profile of accused Rahul which was generated from his semen sample, hair sample, pubic hair sample etc. Since accused Rahul has failed to explain how his semen came to be found on the seat covers of the Tata Indica car, it only indicates that he was involved in the gang rape of the deceased in the said car.
SC No.91/13. Page 48 of 6258. The DNA profile generated from the semen spot found on another seat cover was found to be consistent with the DNA profile of accused Vinod generated from his semen sample, pubic hair sample, blood sample etc. and thus his complicity in the gang rape of the deceased in the said car also gets established.
59. The report Ex.PW23/A further shows that the DNA profile generated from the male fraction DNA obtained from vaginal swab of the deceased was a mixed profile and could have been developed by mixture of alleles contributed by both accused Ravi and accused Vinod as it exhibits mixed profile relating to DNA generated from blood samples of these two accused. A black hair strand had been found on the body of the deceased, which exhibits male DNA profile similar to that generated from the hair sample of accused Ravi.
60. Thus the aforestated DNA report establishes the complicity of all the three accused in the gang rape of the deceased. As noted herein-above that PW23 has not been cross examined on behalf of accused at all. The Ld. Counsels for the accused have failed to point out anything in his examination, which would make his report unreliable. This court cannot substitute its own opinion in place of the opinion of an expert on a technical subject like DNA profiling. In Bhagwan Dass vs. State of Rajasthan, AIR 1957 SC 589, the Supreme Court held that it would be a dangerous doctrine to lay down with the report of an expert witness could be brushed aside by making reference to some text books without such books put to the expert.
SC No.91/13. Page 49 of 6261. There cannot be any two opinions about the legal principle that an accused can be held guilty and convicted on the sole basis of DNA report which establishes his complicity in the offence alleged against him. It cannot be disputed that in the past 20 years, DNA typing has enhanced the ability of the forensic scientists to characterize biological evidence and has greatly influenced the way the law enforcement community conducts criminal investigations.
62. DNA plays an important role in modern forensic science. Today, DNA fingerprinting has become one of the primary methods of identifying people and solving crimes. DNA stands for Deoxyribonucleic Acid. It is the genetic material of a human cell. It can also be described as the blueprint of an organism. DNA is contained in blood, semen, skin cells, tissues, organs, muscle, brain cells, bone, teeth, hair, saliva, mucus, perspiration, fingernails, urine, feces etc.
63. The chemical structure of everyone's DNA is the same. The only difference between people is the order of base pairs. There are so many millions of base pairs in each person's DNA that every person has a different sequence. From these sequences every person could be identified solely by the sequence of their base pairs. Instead, scientists are able to use a shorter method due to repeating patterns in DNA. These patterns do not, however, give an individual "fingerprint" but they are able to determine whether two DNA samples are from the same person, related people, or non related people. This is called DNA fingerprinting or SC No.91/13. Page 50 of 62 profiling.
64. The process of DNA fingerprinting was developed by Professor Alec Jeffreys at Leicester University in 1984 as a form of genetic analysis. It was first used in the law courts of England in 1987 to convict a man in a rape case. It is now being used successfully world over in many crime and paternity cases. It has been observed that no two people except identical twins, share the same set of DNA. At the worst, there is one in 50 billion chances of two DNA sequences being similar. Unlike a conventional fingerprint that occurs only on the fingertips and can be altered by surgery, a DNA fingerprint is the same for every tissue, and organ of a person. It cannot be altered by any known treatment.
65. Also known as DNA genetic typing or DNA profiling, DNA fingerprinting is simply collection, processing and analysis of VNTRs - unique sequences on the loci (area on chromosome). VNTR stands for variable number Tandem repeats - meaning that the tandem repeats, or pairs of nucleotides, vary in number. Most DNA sequences in different people look too similar to tell apart. After processing, however, VNTRs result in bands that are unique enough to be used for identification.
66. Hence the DNA report is very strong and reliable piece of evidence in a criminal case and carries as much weight as ocular testimony. The DNA profiling is used worldwide now for identification of the criminals, more particularly, in rape and murder cases. Scientific research has shown that that no two SC No.91/13. Page 51 of 62 persons except the identical twins share the same pattern of DNA and the possibility of two persons having same DNA pattern is one in 50 billion whereas the world population as of now, according to United States Census Bureau, is just a little over seven billion.
67. Thus, in view of such unique characteristics of human DNA, DNA report cannot be ignored completely on mere surmises and conjectures. The Supreme Court also has in Santosh Kumar vs. State, (2010) 9 SCC 747 accepted DNA report as being scientifically accurate and an exact science.
68. In the present case, I have already held that DNA report Ex.PW23/A is absolutely reliable and genuine document and therefore, it is a very strong piece of evidence against the accused.
69. It was vehemently argued on behalf of the accused that the semen stains found on the seat covers of the Tata Indica car bearing no.DL-3CAF-4348 were planted by the police officials for false implication of the accused in this case. It was submitted that it is for this reason PW10 did not observe the same between 10.2.2012 and 13.2.2012, during which period the car remained in his custody. I find no force in the submissions of the Ld. Defence Counsels. It is true that PW10 has deposed that he had cleaned the car on 11.2.2012 and did not detect any foreign object inside the same. It is to be noted that as per the deposition of PW10, he only cleaned the car and did not wash it from inside. He has deposed in his cross examination that he did not get the car washed as no driver was available. It may be that the semen SC No.91/13. Page 52 of 62 stains were on the seat covers but they were not visible to the naked eye and therefore he did not notice the same. Dr. Singla, the CFSL expert, who had directed the seizure of the seat covers may have detected the semen stains on the same with the help of special tools such as microscopic lens etc. Therefore it cannot be said that Dr. Singla could not have detected any semen stain on the seat covers when PW10 did not notice any such stains on those. Moreover, I do not find any possibility or occasion for the police officials to plant semen stains of the accused on the seat covers. All the three accused were produced for their medical examination in RTRM Hospital on 14.2.2012. They were examined by PW5 and he collected their blood sample, semen sample, pubic hair, scalp hair sample and nail clippings and handed over the same to the IO in sealed parcel. In his cross examination, he has deposed that the samples were sealed by the Duty Constable at RTRM Hospital with the seal of RTRM Hospital, New Delhi. The seizure memos Ex.PW37/B, Ex.PW38/A and Ex.PW39/F also show that all the samples were sealed with the seal of RTRM Hospital, when those were seized by the IO. These samples were later on sent to CFSL for DNA profiling and comparison, where they were examined by PW23. PW23 has mentioned in his report Ex.PW23/A that all the parcels in respect of the three accused, were having the seal of RTRM Hospital. This shows that the samples were in the same sealed condition when they were opened by PW23 in CFSL, Lodhi Road, in which condition they were sealed by the Duty Constable at RTRM Hospital in presence of PW5 and seized by the IO. This rules out any possibility of tampering with the samples of the accused. It is not the case of the accused that their semen samples were taken on some other date also by some other SC No.91/13. Page 53 of 62 doctor. Therefore, there was no occasion for the police officials to get hold of the semen sample of the accused in open condition and to plant the same on the seat covers of the Tata Indica car bearing registration no.DL-3CAF-4348.
70. Same can be said of the hair strand found and lifted by Dr. Singla from the rear seat of the Tata Indica car bearing registration no.DL-3CAF-4348. May be it was placed at such a corner of the seat that it was not noticeable by naked eye and therefore PW10 did not see it. In this regard also, I do not see any chance for police official to plant hair strand of the deceased in the car as the dead body had been removed from the fields, where it was found, by Haryana Police officials (PW46) and its postmortem examination was also got done in Civil Hospital, Rewari, by PW46 and soon thereafter the dead body was handed over to the relatives of the deceased.
71. it was also contended by the Ld. Counsels for the accused that all the samples relating to the accused and relating to the deceased were seized by the IO on 14.2.2012 but the same had been sent to FSL by PW49 on 27.2.2012 and during that period, these remained in the Malkhana of the police station, which gives rise to a possibility that these samples were tampered with in the Malkhana. I do not find any merit in the said contention of the Ld. Defence Counsels. Mere delay of a few days in sending the samples to the FSL for forensic examination cannot be said to give rise to the presumption that the samples had been tampered with. In my opinion, no adverse inference can be drawn from the delay of 13 days in sending the samples to FSL, when there is no SC No.91/13. Page 54 of 62 evidence on record to suggest that those have been tampered with and the evidence on record shows that the seals were intact when samples were opened in the FSL. In this regard, my views are fortified by the judgment of Delhi High Court in the case reported as Aziz vs. State, 2014 (I) AD (Cri.) (DHC) 153.
72. Now coming to the call detail records and the location of the mobile phone used by accused Rahul, accused Ravi and the deceased. Accused Rahul has admitted in his statement u/s.313 Cr.PC that a mobile phone of make Micromax was recovered from his search at the time of his arrest. Similarly, accused Ravi has also admitted in his statement u/s.313 Cr.PC that a mobile phone of make Spice was recovered from his search at the time of his arrest. Both these mobile phones were seized by PW48 vide seizure memos Ex.PW39/L and Ex.PW39/M respectively. The seizure memo Ex.PW39/L shows that a Micromax mobile phone having IMEI No.910041046300731 & 910041046810739 and mobile/SIM no.9968988533 was recovered from the possession of accused Rahul. Seizure memo Ex.PW39/M shows that a mobile phone of make Spice bearing IMEI No.911135600568317 & 911135600719811 and mobile/SIM no.8802090923 was recovered from the possession of accused Ravi. It is nowhere disputed on behalf of accused Rahul and Ravi that they were using the aforesaid mobile numbers on 9/10.2.2012. As already noted herein-above, a broken mobile phone which the deceased was carrying with her when she was kidnapped, was got recovered by accused Rahul and the same was seized by PW48 vide seizure memo Ex.PW39/K. The seizure memo Ex.PW39/K only mentions the IMEI number of the said mobile phone number as SC No.91/13. Page 55 of 62 910040992852058 & 910040992852066 but does not mention its mobile number. The father of the deceased (PW8) has deposed that his daughter was using mobile no.9540594640, which had been allotted in his name. He has not been cross examined on this point and therefore, it is not disputed that the deceased was using mobile phone no.9540594640 at the time when she was kidnapped. PW21 has proved the records regarding the said mobile phone number and as per customer application form Ex.PW21/C, this mobile phone was allotted in the name of Kanwar Singh Negi (PW8).
73. PW28 has proved the customer application form in respect of mobile phone no.9968988533. As per the said form Ex.PW28/A this mobile number has been issued in the name of accused Rahul.
74. The location of the aforesaid three mobile phones on the night intervening between 09.2.2012 and 10.2.2012 has been brought on record by PW19, PW21, PW22 and PW28. The testimony of PW19 shows that mobile phone no.8802090923, which was being used by accused Ravi on the aforesaid night was at Palam Vihar at 7.46 p.m. and thereafter it went into roaming in Haryana upto 4 a.m. Ex.PW19/B and Ex.PW20/A are the location charts in this regard. The testimony of PW22 and PW28 reveals that the location of mobile phone of accused Rahul bearing no. 9968988533 was at Dwarka at 8 p.m. and thereafter at Machauli, Jhajjar in Haryana at about 10.30 p.m. Thereafter it was switched off. The location chart is Ex.PW28/F. As per the testimony of PW21, the location of the mobile phone no.9540594640 of the deceased SC No.91/13. Page 56 of 62 'K' was at Tajpur, Delhi, at 8.55 p.m. Thereafter at Machauli, Haryana, at 10.40 p.m. Then it travelled towards Khudan - Patori - Gowara - Palhawas - Rodai - Chillar - Mastpur and back to Rodai. The location charts Ex.PW21/B and Ex.PW21/C.
75. Therefore, it is evident that the location of all the aforesaid three mobile phones was around Jhajjar, Haryana, after 10 p.m. on the night intervening between 09.2.2012 and 10.2.2012. The accused Ravi and Rahul have not disputed that they were using aforesaid mobile phone numbers during that night. It was for them to show why were they present around the area of Jhajjar in Haryana, at such late hours on 09.10.2012. Their failure to do so only leads us to their complicity in the kidnapping, rape and murder of the deceased 'K'.
76. It was argued on behalf of the accused that the postmortem report Ex.PW26/A at the most establishes that the deceased 'K' had been brutally killed but it does not mention that she had been raped or gang raped before the murder. It was further argued that there is no evidence on record to show that the deceased had been gang raped before being killed. These submissions of the Ld. Defence Counsels have no force at all. As noted herein-above, semen spots were found on the seat covers of the Tata Indica car bearing registration no.DL-3CAF-4348 and DNA generated from those was found to be consistent with the DNA profile of accused Rahul. It has already been held proved by the prosecution that these three accused had kidnapped the deceased in the evening of 09.2.2012 in the Tata Indica car bearing registration no.DL-3CAF-4348 being driven by accused Rahul.
SC No.91/13. Page 57 of 62Under these circumstances, in the absence of any explanation from accused Rahul as to how his semen spots came to be present on the seat covers of the said Tata Indica car, the only conclusion which could be derived is that he had committed the rape upon the deceased. Further the DNA report Ex.PW23/A shows that the DNA profile generated from male fraction DNA obtained from the vaginal swab of the deceased was the mixed profile and could have been developed by mixture of alleles contributed by both the accused Ravi as well as accused Vinod as it exhibited mixed profile relating to DNA generated from blood sample of these two accused. This amply shows that these two accused had also gratifying their sexual lust upon the deceased by subjecting her to rape one by one. Therefore, in my opinion, there is sufficient evidence to hold that the three accused had committed gang rape upon the deceased before killing her.
77. The Ld. Defence Counsels had also argued that it would not be proper to convict the accused for the rape and murder of the deceased when the prosecution has failed to prove the motive for the crime. With regard to this, it may be noted that the motive for committing the crime often remains embedded in the mind of the accused and he may or may not reveal the same. Only perpetrator of the crime knows as to what circumstances prompted him to take a course of action leading to the commission of crime. The prosecution cannot be expected in all cases to lead evidence to show how the mind of the culprit worked. The mere fact that the prosecution failed to translate mental disposition of the accused into evidence does not imply that no such mental condition existed in his mind. The Supreme Court too has observed SC No.91/13. Page 58 of 62 in Paramjit Singh Pamma vs. State of Uttrakhand, 2010 (10) SCC 439 that if a motive is proved, that would supply a link to the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case.
78. Moreover, no specific motive is required to commit the offence of rape. It is a crime of passion and can be committed by an accused on the instant arousal of the desire for sexual gratification on seeing a girl. Therefore, I consider that the failure of the prosecution to prove the motive in the present case does not in any way adversely affect its case against the accused.
79. On scrutiny of the overall evidence lead by the prosecution in this case, it is evident that following circumstances have been proved beyond reasonable doubt :
(1) The deceased was kidnapped in a red colour Tata Indica car.
(2) The red colour Tata Indica car bearing registration no.DL-3CAF-4348 belonging to PW10 was in the custody of accused Rahul from 7.45 a.m. on 09.2.2012 till 9 a.m. on 10.2.2012 and from 11.2.2012 to 13.2.2012.
(3) The female hair strand was found on the rear seat of the aforesaid Tata Indica car and DNA generated from it was found similar to the DNA of the deceased implying that it was the hair of the deceased.
(4) The DNA generated from the semen spots found on the seat covers of the aforesaid Tata Indica car was SC No.91/13. Page 59 of 62 similar to that of accused Rahul.
(5) The dead body of the deceased was recovered from the fields of village Rodai at the instance of accused Ravi and Vinod on 13.2.2012.
(6) A red colour purse containing some cash, ATM Cards as well as PAN card and driving licence in the name of Rahul were found near the dead body of the deceased.
(7) The three accused had pointed out the spot, on which they had smashed the head of the deceased with a 'Matka' in order to kill her.
(8) A Jack and Pana were recovered from the boot of the aforesaid Tata Indica car bearing registration no.DL-3CAF-4348, which was having blood spots and DNA generated from the blood spots was found similar to that of the deceased implying that deceased was hit by the said Jack and Pana.
(9) The autopsy Doctor (PW26) opined that the injuries found on the dead body of 'K' could be possible by aforesaid Jack and Pana.
(10)A broken piece of bumber of the aforesaid Tata Indica car bearing registration no.DL-3CAF-4348 was also recovered from near the dead body of the deceased in the fields of village Rodai.
(11)The panty of the deceased was got recovered by accused Vinod from a vacant plot adjacent to house No.RZ-54, Palam Vihar, Sector-6, Dwarka, belonging to PW11 where the three accused were residing as a tenant.
SC No.91/13. Page 60 of 62(12)Accused Rahul got recovered the broken mobile phone of the deceased from amongst the bushes on the central verge in front of the road near Kamal Cinema Hall, near Rajinder Dhaba, Delhi.
(13)The vaginal swab of the deceased was found to have mixed male DNA profile, which was similar to that of accused Vinod as well as accused Ravi.
(14)The location of mobile phones of the accused Rahul, accused Ravi and the deceased was around Jhajjar, Haryana in the night intervening between 09.2.2012 and 10.2.2012 when the deceased was kidnapped, raped and murdered.
80. All the aforesaid circumstances proved by the prosecution in the present case unerringly point only to one hypotheses i.e. the guilt of the accused. Nothing has been brought on record which would point towards innocence of the accused.
81. Resultantly, I hold that the prosecution has been successful in proving the charges against the accused beyond reasonable doubt. There remains no doubt that the deceased 'K' was kidnapped, gang raped and killed in a brutal and ghastly manner by these three accused. The autopsy report Ex. PW26/A and the photographs of the dead body taken by PW30 and PW31 show that the head of the deceased was badly battered and some red hot linear objects were applied on her body to ensure that she does not remain alive. The motive for killing the deceased is not far to seek. The accused feared that the deceased, if left alive, would identify them and got them arrested. The dead body left in SC No.91/13. Page 61 of 62 the distant fields of village Rhodai in Haryana to hide their misdeeds and to ensure that it is not discovered by Delhi Police. The accused are, therefore, guilty of destruction of evidence too.
82. Therefore, all the three accused are hereby convicted for having committed the offences punishable u/s.365/34 IPC, u/s. 367/34 IPC, u/s.376(2)(g) IPC, u/s.302/34 IPC and u/s.201/34 IPC. However, I do not find any evidence on record to suggest that the accused had committed anal intercourse also with the deceased. Therefore, they are acquitted of the charge u/s.377/34 IPC.
Announced in open (VIRENDER BHAT)
Court on 13.2.2014. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
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