Delhi District Court
State vs . Bal Kishan Etc 1/77 on 10 October, 2017
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 47/2014
Assigned to Sessions. 07.07.2014
Arguments heard on 22.08.2017
Date of Judgment 21.09.2017
FIR No. 172/2014
State V 1. Bal Kishan @ Karvaya S/o. Late Sh.
Sada Shivam, R/o. HN Jhuggi No.118,
Madrasi Colony, Morigate, Tis Hazari,
Delhi.
2. Sunny S/o. Late Sh. Vijay @ Mangu
Pahalwan, R/o. HN 1819/1, Yamuna
Bazar, Depote, Hanuman Mandir, Delhi.
3. Rahul @ Raghu S/o. Late Sh. Chhote
Lal, R/o. H. N. Khasra No.138/2, Gali
No.10, Block A2, Sant Nagar, Village
Burari.
4. Aman @ Sonu S/o. Sh. Mahesh, R/o.
1830/5, Yamuna Bazar Sanitary Depot,
Hanuman Mandir, Delhi.
5. Mohd. Wasim @ Sahil S/o. Mohd.
Salim R/o. HN 23/62, New Om Nagar,
Dhobi Ghat, Sangam Park, Rana Pratap
Bagh, Delhi. (All in JC)
Police Station Subzi Mandi
Under Section 366/34, 376D, 376(2)(n) IPC
JUDGMENT
1. In the present case Station House Officer of Police Station Subzi Mandi had SC No.47/2014 State Vs. Bal Kishan etc 1/77 filed a challan vide FIR No.172/2014 dated 25.04.2014 u/s 376 (D)/363/365 IPC for the prosecution of accused persons namely Bal Kishan @ Karvaya, Sunny, Rahul @ Raghu, Aman @ Sonu and Mohd. Wasim in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr. P.C. the case was sent to this court being the designated Special Fast Track Court for trial of the offences of sexual assault against the women through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
BRIEF FACTS OF THE CASE:
2. Criminal law was set into motion on the basis of statement Ex.PW1/A of the prosecutrix wherein she stated that she got married 89 years ago but residing separately with her father. Her daughter is residing with her husband. She further stated in her statement that her elder sister Samaya was living in Punjab and she wanted to go to at Jalandhar to meet her. It is further stated that on 23.04.2014 prosecutrix reached Sonauli border from her village and from there she took bus to reach Basti. From there, she bought general ticket, boarded a Delhi bound train and reached Delhi. During the said journey, one boy met her and during conversation he told her that he was residing in Delhi and he would help her. The said boy gave his mobile No.8586880171 to the prosecutrix and she noted down the same in her diary. It is further stated in the statement that she reached Delhi on 24.04.2014 and again bought train ticket for going to Jalandhar and started waiting at Old Delhi Railway Station SC No.47/2014 State Vs. Bal Kishan etc 2/77 for the train. While she was waiting for train, in between 12:00 noon to 12:30 p.m. one boy met her and he also gave his mobile No.987171193884 and she again noted down in her diary and thereafter, the said boy had also served food to her. Since there was some time in arrival of the train, prosecutrix started roaming around the platform and she reached at platform No.1516 from platform No.12. During this period the said boy left the platform. She further stated that since timing of Jalandhar bound train was 2:15 p.m. but as she was roaming around the platform, it reached 2:30 p.m. and she missed the train and got disturbed and again started strolling here and there on platform. During this time one boy met her whose name was Raghau and on her request he dialed mobile phone No.9871193884 when she had noted down in her diary from his mobile phone but the person on the other side refused to talk to her. She again got disturbed and boy namely Raghu who dialed the said telephone number consoled her that she need not to worry and that he would make an arrangement for her visit and stay. Thereafter, Raghu took her outside the railway station and from there he telephoned somebody. After sometime the said boy namely Raghu took the prosecutrix in a Van where four boys were already sitting. They took the prosecutrix to Samadhi of Mahatama Gandhi in the said Van and after sometime they took her to a room where all the five persons including Raghu committed gang rape on her one by one. Thereafter, they took the prosecutrix towards Railway Station in the said van and dropped her and Rahul @ Raghu. Other four boys went away in the said Van.
3. It is further stated by prosecutrix in her said statement that at the said place two friends of accused also come up and all the three took the prosecutrix to a SC No.47/2014 State Vs. Bal Kishan etc 3/77 deserted place and they also committed rape on her and thereafter, they went away. It is further stated by prosecutrix that she was weeping at the said deserted place, one person came there and asked her the reason for weeping and she narrated the entire incident to him and that person telephoned the police. Thereafter, police officials came at the said place and they took the prosecutrix to hospital and got her medical examination conducted. On the basis of aforesaid statement of the prosecutrix, present FIR No.172/2014 u/s 376 (D)/363/365 IPC was registered and all the accused persons were arrested and charge sheeted.
CHARGE:
4. On the basis of material available on record, Ld. Predecessor of this court vide order dated 23.07.2014 framed a charge against accused Bal Kishan @ Karvaya, Sunny, Rahul @ Raghu and Aman @ Sonu for the offence punishable u/s 366/34 and 376D IPC and a charge against accused persons namely Bal Kishan @ Karvaya and Rahul @ Raghu for the offence punishable u/s 376 (2) (n) IPC and a charge against accused Mohd. Wasim @ Sahil for offence punishable under section 376D IPC to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution examined 39 witnesses namely PW1 Prosecutrix, PW2 Sh. Brij Mohan, PW3 Sh. Yogesh Jain, PW4 Sh. Khushi Ram, PW5 Sh. Naveen, PW6 Sh. Krishan, PW7 Sh. Manish Gulati, PW8 Sh. Mitrasen, PW9 HC Rajinder Singh, PW10 Sh. Ankit, PW11 Dr. Kiran, SC No.47/2014 State Vs. Bal Kishan etc 4/77 PW12 HC Mahipal, PW13 SI Mohit Kumar, PW14 SI Nagender, PW15 Sh. Vishal Gaurav, PW16 Sh. Anuj Bhatia, PW17 Sh. Jitender @ Guddu, PW18 Ct. Sudesh Kumar, PW19 Ct. Harish, PW20 Dr. Khushboo, PW21 Ct. Inderjeet, PW22 Ct. Amit, PW23 Dr. Solomi, Medical Officer, PW24 Ms. Ambika Singh, Ld. MM, PW25 Ct. Amit Kumar, PW26 Dr. Jagminder Singh, Ld. MM, PW27 Sh. Neeraj @ Manoj Tanwar, PW28 Dr. Prashant Goel, PW29 Ct. Ravinder Singh, PW30 Ct. Harbhajan, PW31Ct. Ravinder, PW32 SI Meena Yadav, PW33 Dr. V. Shankar Narayanan, Sr. Scientific Officer, PW34 Dr. Dinesh Yadav, PW35 Dr. Varun Garg, PW36 Dr. Mahima, PW37 Dr. Megha Aggarwal, PW38 Dr. Abhishek Pachauri and PW39 Ct. Bhopal Singh.
6. PW1 Prosecutrix is a material witness being victim. PW1 testified that she got married in Nepal about 910 years ago and she has a daughter aged about 08 years. She further testified that she was living with her parents separately from her husband as he used to harass her mentally as well physically under the influence of liquor. PW1 further testified that they are seven sisters and one brother, one of her sisters namely Samajna who married to Narayan has been living at Jalandhar, Punjab.
7. She further testified that on 23.04.2014, she left from Nepal as she wanted to visit her sister in Jallandhar, Punjab. She took a bus from her Village and reached at Sonauli Border. From there she went to Basti by bus and from there she took a train for coming to Delhi. While she was coming to Delhi by train, she met one boy namely Rahul in train and they became friendly and he SC No.47/2014 State Vs. Bal Kishan etc 5/77 also gave her his mobile number which she noted in her diary.
8. PW1 further testified that on 24.04.2014, she reached at Delhi Railway Station at about 1:30 p.m., she purchased a ticket for going to Jalandhar. While waiting for the train, she went outside the Railway Station for eating some food along with Rahul. She further deposed that after some time, Rahul left from there and she returned to the Railway Station. She further testified that however, by that time, she had missed by train. She met one boy namely Raghu, who was selling cold drinks on the Railway Station, she noticed that his name Raghu was engraved on his wrist. She from the mobile phone of Raghu made a call to Rahul but Rahul did not pick up the phone. She further deposed that then she started waiting for the next train to Jalandhar, which was scheduled for departure for abut 4 P.M. as she had some time, she asked Raghu about any place which she could visit and he took her to Samadhi of Mahatama Gandhi and India Gate on foot.
9. PW1 further testified that after some time she requested him to take her to the Railway Station but he made call to some one. She further testified that when they were walking from India Gate towards Railway Station. She saw one car and Raghu asked her to sit in that car stating that they will reach station early in the car. She further testified that when she sat in the car, two more persons sat in the car along with Raghu and two persons were already sitting in the car on the driver seat and the front passenger seat. Instead of taking her to the Railway Station, they took her to the house one of those boys and confined her in that room and they all raped her one by one.
SC No.47/2014 State Vs. Bal Kishan etc 6/7710. PW1 further testified that when it became dark, they brought her to Subzi Mandi in the same car and four boys left from there in the same car while Raghu remained with her. Raghu assured her that he will take her to the house of her sister but soon two other persons reached there and all three of them raped her and left her there and she started crying. PW1 further testified that after sometime, two persons came on a motorcycle and asked her the reason of her crying she told them about the incident and they called the police. She further testified that police officials came at Subzi Mandi and police took her to PS and thereafter, taken her to hospital where she was medically examined. This witness has proved her statement Ex.PW1/A. She further testified that she had thrown her underwear at Subzi Mandi after the incident and rest of her clothes were not seized by examining doctor at the time of her medical examination.
11. This witness has proved her statement u/s 164 Cr.P.C. vide Ex.PW1/B. This witness has also proved site plan i.e. place of incident near Subzi Mandi vide Ex.PW1/C. This witness deposed that the diary in which she noted the mobile number of Rahul was given to the police by her which was seized vide Ex.PW1/D. This witness has correctly identified the diary vide Ex.PW1/E.
12. This witness was cross examined by Ld. Addl. PP for the State. In her cross examination, this witness admitted that the name of the person who met in the train and gave his mobile phone number 8586880171 was Brij Mohan and not Rahul. This witness further admitted that one other person met her at the platform and he provided food for her.
SC No.47/2014 State Vs. Bal Kishan etc 7/7713. This witness further admitted that he came to know later on during investigation that accused Raghu is also known as Rahul.
14. In her cross examination by Sh. R.P. Tyagi, Ld. counsel for accused Aman, this witness deposed that nobody was present in the house of one of those boys where he was confined in a room. This witness had denied to the suggestion that there is no house in that area nor anyone is residing there. This witness admitted that she stated to the police in her statement Ex.PW1/A that one person asked her about the reason of her crying and then she narrated the entire incident.
15. This witness deposed that she stated to the police that while waiting for the train, she went outside the Railway Station for eating some food alongwith Rahul. Confronted with statement Ex.PW1/A where this fact is not mentioned. This witness deposed that she had stated to the police that as she had sometime, she asked Raghu about any place which she could visit and then he took her to Samadhi of Mahatama Gandhi and India Gate on foot. This fact was confronted with the statement Ex.PW1/A where it is not so recorded but where it is mentioned that he took her to Rajghat with them in a van. In her cross examination her statement Ex.PW1/A was confronted on various facts.
16. This witness had denied to the suggestion that she was not fit to make a statement Ex.PW1/A. This witness had denied to the suggestion that she has been tutored by IO to depose before this court yesterday and even today.
SC No.47/2014 State Vs. Bal Kishan etc 8/7717. This witness deposed that she had not stated to police in her statement Ex.PW1/A that accused Aman brought the car and that car was used in incident but she she had stated so in her statement Ex.PW1/B. Statement Ex.PW1/B was confronted where this fact is not mentioned but where it is mentioned at point X to X that the driver of the van was Sunny and in that van Sunny and Sahil came together.
18. On being cross examined by Ld. APP for the State, accused Rahul @ Raghu, Sunny and Bal Kishan @ Karvaya have been pointed by Ld. APP and on seeing the said accused the witness admitted that these three accused are the same persons who brought her out from the railway station. This witness further admitted that accused Aman brought a car and all of them alongwith one more person being JCL took her to the room where she was raped by them in the first incident.
19. On being cross examined by Sh. R.P. Tyagi, Ld. counsel for accused Aman, this witness deposed that complaint Ex.PW1/A is not in her handwriting. It was written by the police official as per her dictation and she signed the same. She was in complete senses at that time.
20. On Court Question: On 01.08.2014 you deposed that you led the police to the place of incident i.e. near Subzi Mandi whereas today you denied the same. Which of two statements is correct?
21. In reply this witness deposed that she did not point out the place of incident to the police. What she has deposed today is correct.
SC No.47/2014 State Vs. Bal Kishan etc 9/7722. This witness deposed that she had signed the site plan Ex.PW1/C at the PS on asking of police. There was no light and it was dark at the place where the rape was committed at second place. This witness had denied to the suggestion that accused Aman does not know how to drive a car or that she has wrongly identified the car at the instance of I.O. or that car was never used in the alleged incident.
23. On being cross examined by Sh. Tarun Arora, Ld. counsel for accused Bal Kishan, this witness had denied to the suggestion that she has identified accused Bal Kishan at the instance of I.O. and police had already shown her the photograph of accused Bal Kishan.
24. On being cross examined by Sh. Ajit Kumar Bhardwaj, Ld. counsel for accused Sunny, this witness had denied to the suggestion that she has identified accused Sunny at the instance of I.O. and police had already shown her the photograph of accused Sunny.
25. On being cross examined by Sh. A.N. Khan, Ld. counsel for accused Wasim, this witness had denied to the suggestion that she has identified accused Wasim at the instance of I.O. and police had already shown her the photograph of accused Wasim.
26. PW2 Sh. Brij Mohan. This witness deposed that he is working as tailor. On 24.04.2014 at about 7:30 a.m., he took Raksool Express train from Gajrola Railway Station for Delhi. He further deposed that one girl namely Manju SC No.47/2014 State Vs. Bal Kishan etc 10/77 met him in the train and she asked him for her help. She gave his mobile phone number 8586880171 to her in case she needs any help and she wrote it in her diary. She told him that she was going to Jallandhar. She further deposed that at about 99:30 a.m. she got down at Shahdara Railway Station from train and at about 33:15 p.m. he received a phone call of Manju wherein she requested him to come to ODRS stating that she had missed her train to Jallandhar. However, he expressed his inability to go there as he was doing her work.
27. On putting leading question to the witness by Ld. Addl. PP for the State, this witness admitted that he told the phone number from which Manju had called him to the police in his statement. He further admitted that the said number was 8130644931.
28. In his cross examination by Sh. Tarun Arora, Ld. counsel for accused Bal Kishan, he deposed that she did not tell prosecutrix about the schedule time of departure of train to Jallandhar as he was not aware of the same. She did not enquire about the train to Jallandhar from any other passenger in his presence. He did not tell his name to prosecutrix as she did not ask him his name.
29. PW3 Sh. Yogesh Jain. This witness deposed that police of PS Subzi Mandi came to his house few months ago and made enquiries from him about the mobile phone number 8130644931 and told him that the same number has been issued on his ID but he told the police that he never got issued the said number on his ID nor did he give his ID proof to anyone else. This witness SC No.47/2014 State Vs. Bal Kishan etc 11/77 after seeing the copy of customer application form Mark PW3/X and copy of his identity proof Mark PW3/Y deposed that customer form does not bear his signatures though it appears to be his photographs on the said form. This witness has proved copy of his identity proof Mark PW3/Y.
30. In his cross examination by Sh. Tarun Arora, Ld. counsel for accused Bal Kishan, this witness had denied to the suggestion that he had obtained the said mobile number by using his identity card or that he had been using this mobile number.
31. In his cross examination by Sh. R.P. Tyagi, Ld. counsel for accused Aman, he deposed that he used to keep his identity proof, PAN Card and driving licence always with him. This witness had denied to the suggestion that he is deposing falsely regarding taking the SIM card on the photocopies of his aforesaid documents.
32. PW4 Sh. Khushi Ram is the person who made a call on 100 number from his mobile No.9911247049.
33. PW5 Sh. Naveen is a photographer. This witness deposed that on 19.05.2014, he along with the police reached at IHBAS and prepared video recording of statement of prosecutrix recorded by Ms. Ambika Singh, Ld. MM under section 164 Cr.P.C. by using a video camera and converted the said recording into CD. This witness has proved seizure memo vide Ex.PW5/A. SC No.47/2014 State Vs. Bal Kishan etc 12/77
34. PW6 Sh. Krishan is a supervisor in a company namely Primus Solution Enterprises. This witness deposed that on 26.04.2014 when he came on his duty at railway station, police of PS Subzi Mandi met him there and asked his residential address and obtained his signatures on some papers.
35. This witness was declared hostile by Ld. Addl. PP for the State. In his cross examination by Ld. Addl. PP for the State, this witness had denied to the suggestions that register Ex.PW6/B is given by him to the police. This witness had denied to the suggestion that she has been won over by the accused persons and deposing falsely in order to save the accused. This witness had denied to the suggestion that the company did not give any mobile number to accused Mohd. Wasim for his use.
36. PW7 Sh. Manish Gulati is the Manager (Operations) with Primers Solution Enterprises. This witness deposed that he know accused Sahil @ Mohd. Wasim, as he had also worked with their company as a Supervisor at Old Delhi Railway Station and the company has provided a mobile phone bearing sim No.8527194719 to Sahil @Wasim. This witness has proved copy of E mail sent by him to Airtel vide Ex.PW7/A and the response received from Airtel vide Ex.PW7/B. This witness has proved copy of the consolidated bill of mobile phone connections used by the employees of their company i.e. Primus Solutions Enterprises and the copy of the cheque by which payment was made to Bharti Airtel Limited vide Ex.PW7/C (colly). This witness has proved his certificate under section 65B Indian Evidence Act vide Ex.PW7/D. SC No.47/2014 State Vs. Bal Kishan etc 13/77
37. In his cross examination by Sh. A.N. Khan, Ld. counsel for accused Mohd.
Wasim @ Sahil, this witness deposed that he had sent the email to Airtel with request to deactivate the aforesaid mobile number as per directions of his senior officers and he had not received any written directions in this regard. This witness had denied to the suggestion that the company did not give any mobile number to accused Mohd. Wasim for his use.
38. PW8 Sh. Mitrasen. This witness deposed that he know one Brij Mohan S/o.
Sh. Digvijay Singh who used to work of stitching at his shop at Mauzpur and about 34 years ago, he got issued one sim card of Vodafone, number of which he does not remember, on his ID and gave it to Brij Mohan. This witness has proved attested copy of Customer Application Form vide Mark PW8/A1. This witness has also proved the attested copy of his Voter ID which had been furnished along with the aforesaid CAP vide mark PW8/A2.
39. On leading question by Ld. Addl. PP for the State, this witness admits that the phone number 8586880171 was issued on his said ID and has been used by Brij Mohan.
40. PW9 HC Rajinder Singh is a formal witness being Duty Officer. This witness has proved computerized copy of FIR vide Ex.PW9/A.
41. PW10 Sh. Ankit. This witness deposed that one store room of MCD near his house was lying vacant since long time and he started using the same for storing his goods as some construction work was going on in his house. This witness deposed that about three months prior to the incident in question, one SC No.47/2014 State Vs. Bal Kishan etc 14/77 Mohan Singh resident of Garhwal came to him through one of his friends Om Prakash and requested him to permit him to live in the said store room. This witness allowed him to use the said room for some days. This witness deposed that two friends of Mohan Singh namely Sunny and Aman used to visit him in the said room some times. This witness has correctly identified accused persons namely Sunny and Aman present in the court.
42. PW10 further deposed that he came to know through the police who came to him for making inquiries that one incident of rape has been taken place in the said room.
43. On putting a leading question by Ld. Addl. PP for the State, this witness admitted that police recorded his statement on 11.05.2014 and told him that the incident of rape took place on 24.04.2014.
44. In his cross examination by Sh. R.P. Tyagi, ld. counsel for accused Aman @ Sonu, this witness deposed that the aforesaid store of MCD is at walking distance of 23 minutes from his house and the said MCD store is a godown type but he cannot tell its exact dimensions. He further deposed that there is electricity connection in the MCD store. He was not paying any rent to MCD. This witness had denied to the suggestion that the store always remained in his possession or that he never permitted Mohan to use it. This witness deposed that he did not see Aman and Sunny coming to the store to meet Mohan. This witness had denied to the suggestion that no incident took place in the said room or that it remained in his possession throughout.
SC No.47/2014 State Vs. Bal Kishan etc 15/7745. PW11 Dr. Kiran has conducted gynecological examination of prosecutrix and given her observations encircled in red colour in MLC vide Ex.PW11/A. This witness has also collected the exhibits and handed over the same to the police in sealed condition after medical examination of patient.
46. PW12 : HC Mahipal No.325/N PS Subzi Mandi, Delhi. This witness has proved entries in register No.19 and 21. This witness deposed that on 25.04.2014, while he was posted as MHC(M) at PS Sarai Rohilla, SI Meena Yadav deposited case property of this case i.e. three sealed parcels with sample seal of the hospital. He deposited the same by making entry at Srl. No.2125 in register No.19. This witness has proved copy of the entry vide Ex.PW12/A.
47. This witness further deposed that on 28.04.2014, SI Meena Yadav deposited case property of this case i.e. two sealed pullandas of mobile phones and Nepal currency and also deposited four sealed exhibits seal with the seal of 'MY' and also deposited the exhibits of the accused Aman @ Sonu, Rahul @ Raghu, Bal Kishan, Sunny and JCL Mohal Singh and one car No.DL 3CAA 3297. He deposited the same by making entry at Srl. No.2132 in register No.19. This witness has proved copy of the entry vide Ex.PW12/B.
48. This witness further deposed that on 23.05.2014, SI Meena Yadav deposited case property of this case i.e. two sealed exhibits with sample seal of the hospital. He deposited the same by making entry at Srl. No.2190 in register No.19. This witness has proved copy of the entry vide Ex.PW12/C. SC No.47/2014 State Vs. Bal Kishan etc 16/77
49. This witness further deposed that on 30.04.2014 on the directions of the IO, exhibits of entries Ex.PW12/A & Ex.PW12/B were sent to FSL through Ct. Amit Kumar and Ct. Dharmendra vide RC No.39/21/14, 40/21/14, 41/21/14 & 42/21/14, but exhibits were not deposited in the FSL due to improper query. Exhibits were again deposited in the Malkhana. This witness has also made an entry at point X in Ex.PW12/A & Ex.PW12/B.
50. This witness further deposed that on 01.05.2014 on the directions of the IO, exhibits of entries Ex.PW12/A & Ex.PW12/B were again sent to FSL through Ct. Amit Kumar vide RC No.43/21/14, 44/21/14 & 45/21/14. This witness has made an entry at point Y in Ex.PW12/A & Ex.PW12/B.
51. This witness further deposed that on 29.05.2014, the car was released on Superdari by court order. This witness has also made an entry at point Z in Ex.PW12/B.
52. This witness further deposed that on 26.05.2014, on the directions of the IO, exhibits of entries Ex.PW12/C was sent to FSL, Rohini through Ct.Harish Kumar vide RC No.52/21/14. This witness has made an entry at point X in Ex.PW12/C.
53. This witness further deposed that on 17.10.2014, all the case property was received back in the Malkhana duly sealed with the seal of FSL, Rohini along with the FSL result. This witness has made an entry at point A in Ex.PW 12/A, Ex.PW12/B & Ex.PW12/C. SC No.47/2014 State Vs. Bal Kishan etc 17/77
54. This witness has also brought Register No.21 containing RC No.39,40,41,42,43,44,45 & 52/21/14. This witness has proved copy of the said RCs vide Ex.PW12/D1 to D8 respectively and the copies of the acknowledgment of receipt of case property in FSL, Rohini vide Ex.PW12/E, Ex.PW12/F & Ex.PW12/G respectively. This witness further deposed that so long as pulandas remained in his custody they were not tampered with by any person in any manner.
55. On being cross examined by Sh. R.P.Tyagi, Ld. counsel for accused Aman, this witness had denied to the suggestion that he has made incorrect entries in the register as per directions of senior officers.
56. PW13 SI Mohit Kumar. This witness has prepared inspection report vide Ex.PW13/A.
57. PW14 SI Nagender has inspected the scene of crime at Phool Mandi, Rajindra Market, Rain Basera, More Gate, Delhi and prepared his inspection report vide Ex.PW14/A.
58. PW15 Sh. Vishal Gaurav is Nodal Officer of Bharti Airtel Limited has proved the CDR Ex.PW15/A and Ex.PW15/B qua mobile phone numbers 8130644931 and 8527194719 subscribed in the name of Yogesh Jain and Ayush Services ad Consultancy respectively. PW15 has also produced the customer application form alongwith the ID proof Ex.PW15/C and Ex.PW15/D respectively qua the said mobile numbers.
SC No.47/2014 State Vs. Bal Kishan etc 18/7759. PW15 also produced the cell ID chart Ex.PW15/E, he also gave certificate under section 65B of Evidence Act, Ex.PW15/F, PW15 has also proved the CDR of the aforesaid mobile numbers for the period from 15.02.2014 to 06.04.2014 Ex.PW15/G and cell ID chart Ex.PW15/H and also gave certificate Ex.PW15/I under section 65 B of Evidence Act qua the said CDR.
60. PW16 Sh. Anuj Bhatia has proved CDR Ex.PW16/A of mobile number 8586880171 subscribed in the name of Mitrasen, PW16 has also produced customer application form along with proof of ID, Ex.PW16/B and he also gave certificate u/s 65 B of Evidence Act Ex.PW16/C qua the said CDR.
61. PW17 Sh. Jitender @ Guddu an employee of Primus Company has deposed that mobile number 8130644931 belongs to accused Rahul @ Raghu who was also working in the said company as Cleaner and accused Rahul @ Raghu had also arrested at his instance from outside Railway Station. PW17 further deposed that he also knows accused persons namely Bal Kishan @ Karvaya, Sunny and Mohd. Wasim @ Sahil who were working in the company namely Primus Solution Enterprises. This witness had also identified his signature on the relevant entry dated 27.04.2014 in the duty register Ex.PW6/B.
62. PW18 Ct. Sudesh Kumar had photographed the place of occurrence. He had taken 11 photographs of the spot on the directions of the IO, out of which four photographs proved vide Ex. PW1/P1 to Ex. PW1/P4 and four photographs proved vide Ex. PW13/DA to Ex. PW13/DD and remaining three photographs proved vide Ex. PW18/A to Ex. PW18/C. SC No.47/2014 State Vs. Bal Kishan etc 19/77
63. This witness has also proved negatives of the aforesaid 11 photographs vide Ex. PW18/D1 to PW18/D11.
64. On being cross examined by Sh. R.P. Tyagi, Ld. counsel for accused Aman, this witness had denied to the suggestion that he took the alleged photographs of some other place at the instance of IO of this case.
65. PW19 Ct. Harish carried the exhibits of this case vide RC No.52/21/14 to FSL, Rohini and deposited them at FSL, Rohini against an acknowledgement.
66. PW20 Dr. Khushboo assisted Ms. Ambika Singh, Ld. MM in recording the statement of prosecutrix under section 164 Cr.P.C. PW20 has also given her certificate Ex.PW20/A in this regard.
67. PW21 Ct. Inderjeet, photographer of Crime Team has also taken three photographs of the spot vide Ex.PW21/P1 to Ex.PW21/P23. PW21 has also gave negatives of said photographs vide Ex.PW21/P4.
68. PW22 Ct. Amit is the witness of arrest of accused Waseem. This witness has proved arrest memo of accused Waseem vide memo Ex.PW22/A and his personal search was conducted vide personal search memo vide Ex.PW22/B.
69. This witness had taken the accused to Hindu Rao Hospital where he was got medically examined vide MLC Ex.PW22/C and the examining doctor handed over some exhibits in sealed condition to the IO which IO seized vide seizure memo Ex.PW22/D. SC No.47/2014 State Vs. Bal Kishan etc 20/77
70. PW23 Dr. Solomi, Medical Officer has conducted the medical examination of the prosecutrix vide MLC Ex.PW11/A and gave her report vide Ex.PW23/A.
71. PW24 Ms. Ambika Singh, Ld. MM has recorded the statement of prosecutrix and gave her certificate Ex.PW24/A regarding correctness of the statement of the prosecutrix.
72. PW25 Ct. Amit Kumar. This witness has joined the investigation on 25.04.2014 with IO. This witness deposed that on 25/04/2014, he was posted as Constable at PP Tis Hazari Court of PS Subzi Mandi and on that day, on receipt of DD No.5 PP, he alongwith SI Pradeep Rai and Ct. Dharmender reached at Phool Mandi, Rain Basera near Kucha Mohtar Khan, Mori Gate, Delhi. This witness further deposed that there one Khushi Ram met them and produced prosecutrix informing that she has been raped. In the meantime, W/Ct. Shipra alongwith IO/W/SI Meena Yadav and senior officers also came there. They took prosecutrix to Aruna Asaf Ali Hospital where she was medically examined. In his presence IO recorded the statement of prosecutrix, prepared a rukka and handed it over to him which he took the PS for getting the FIR registered. This witness had handed over the rukka to Duty Officer.
73. This witness further deposed that on 27/04/2014, he alongwith W/SI Meena Yadav, SI Pradeep Rai, SI Prakash and Ct.Dharmender reached Old Delhi Railway Station and made enquiries from some public persons. They made enquiries from Joginder about the said mobile phone number. Joginder took them to the Supervisor Krishan and after checking the record, Supervisor SC No.47/2014 State Vs. Bal Kishan etc 21/77 Krishan informed them that the said mobile no. was being used by one Rahul. Supervisor further informed them that Rahul, Sunny, Balkishan and Sahil, who used to do the work of cleaning in his company, are absent since 25/04/2014. In his presence, IO seized the said register into possession vide seizure memo vide Ex.PW6/B.
74. This witness further deposed that Joginder informed them that he has seen Rahul going outside the Railway Station. They came out of the Railway Station and at the instance of Joginder, they apprehended one person whose name was revealed as Rahul. In his presence, Rahul was arrested vide arrest memo and his personal search was conducted vide memo Ex.PW25/A and his disclosure statement was recorded vide Ex.PW25/B.
75. This witness further deposed that accused Rahul led them to Yamuna Bazar, Sanitary Depot near Aushdhalya and pointed out a room to be the place of incident.
76. In his presence, accused Sunny was arrested vide arrest memo and his personal search was conducted vide memo Ex.PW25/C and his disclosure statement was recorded vide Ex.PW25/D.
77. In his presence, Aman @Sonu was arrested vide arrest memo and his personal search was conducted vide memo Ex.PW25/E and his disclosure statement was recorded vide Ex.PW25/F. This witness further deposed that one Accent car was parked near the house of accused Aman @ Sonu which was pointed out by accused Aman stating that this is the same car in which SC No.47/2014 State Vs. Bal Kishan etc 22/77 they lifted the prosecutrix and took her to Yamuna Bazar and left at Phool Mandi (Objected to by Ld.Defence counsel). The said car was seized vide seizure memo.
78. This witness further deposed that crime team was called at the spot. Crime team inspected the room i.e. the place of incident. At the instance of the accused persons, one bed sheet and one mat lying in the room were seized.
79. This witness further deposed that during the course of investigation, accused Bal Kishan @ Karvaya was apprehended at the instance of accused persons and interrogated and arrested. In his presence, all the accused persons were also medically examined at Hindu Rao Hospital. In his presence, examining doctor handed over exhibits to the IO.
80. This witness on 01.05.2014 had taken the exhibits in sealed condition and other relevant documents from Malkhana vide RC No.43/21/14, 44/21/14 & 45/21/14 and deposited the same in FSL, Rohini.
81. This witness on 28.05.2014, received the CD from the photographer Naveen, who videographed the statement of Prosecutrix which was recorded under Section 164 Cr.PC by learned MM in IHBAS on 19.05.2014. IO seized the same vide seizure memo Ex.PW5/A.
82. During the course of investigation, on 31.05.2014, he along with WSI Meena Yadav reached Old Delhi Railway Station and reached in CCTV room. Ct. Harbhajan Singh posted in said CCTV room handed over the CD of CCTV SC No.47/2014 State Vs. Bal Kishan etc 23/77 footage which was seized by the IO vide seizure memo vide Ex.PW25/G.
83. Learned Addl. PP seeks permission to put leading questions to the witness regarding the registration number of the car which was seized at point out of accused Aman, and with regard to seizure of various articles on 27.04.2014. Heard allowed.
84. On being cross examined by Ld. Addl. PP for the State, this witness admitted that the number of car was DL3CAA3297. This witness further admitted that IO also seized another bed sheet and one 'gamcha' from the spot i.e. Sanitary Depot on 27.04.2014 and sealed the same with the seal of 'MY' separately. The photographs Ex.PW1/1 to Ex.PW1/4 are of the same car, which was seized as aforesaid.
85. PW26 Dr. Jagminder Singh, Ld. MM. This witness has conducted the TIP proceedings in respect of accused persons namely Rahul @ Raghu, Sunny, Aman @ Sonu and Bal Kishan vide order Ex.PW26/A.
86. This witness has proved TIP proceedings in respect of accused Aman @ Sonu vide Ex.PW Ex.PW26/B bearing his signatures at points A.
87. This witness has proved TIP proceedings in respect of accused Sunny vide Ex.PW26/C bearing his signatures at points A.
88. This witness has proved TIP proceedings in respect of accused Rahul @ Raghu vide Ex.PW Ex.PW26/D bearing his signatures at points A. SC No.47/2014 State Vs. Bal Kishan etc 24/77
89. This witness has proved TIP proceedings in respect of accused Bal Kishan vide Ex.PW Ex.PW26/E bearing his signatures at points A. This witness deposed that all the accused persons have refused for TIP proceedings.
90. This witness deposed that copies of TIP proceedings were given to the IO on her request vide application Ex.PW26/F.
91. PW27 Sh. Neeraj @ Manoj Tanwar. This witness deposed that his father is working as Driver in ICD at Loni, Ghaziabad, near Railway Station. About 6 7 months ago, he left his job which he was doing at a shop at Kashmeri Gate, Delhi and when he was working at the said shop at Kashmeri Gate, he used to come from my house at Baghpat by train and used to get down at Old Delhi Railway Station.
92. PW27 further deposed that on 24.04.2014, also he reached ODRS at about 11 11:30 AM. He met one girl namely Manju at the exit gate of Railway Station near Kashmeri Gate and she told him that she is from Nepal. She requested to let her make a call from my mobile. This witness further deposed that his mobile number was 9871193884 and she made two calls from his mobile phone after seeing the number from her diary but the phone did not get connected. PW27 further deposed that she was having a railway ticket to Jallandhar and when he went out from the Railway Station for having food outside the Railway Station, she also came there and he also gave her food at her request. She also requested him to make her sit in her train, but he asked her to make inquiries from the inquiry booth. He left her at the inquiry booth SC No.47/2014 State Vs. Bal Kishan etc 25/77 and went away.
93. PW27 further deposed that after about 11½ hour when he was working at the shop, she called him on his mobile phone. He had written his mobile number in her diary at her request at the Railway Station while leaving from there. Prosecutrix requested him to come back to the Railway Station stating that she had missed her train but he refused to go there stating that he has work to do.
94. PW27 further deposed that he had written his name as Rahul while writing his mobile number as he did not want to tell his name. This witness has proved his handwriting on last page of diary already marked as PX encirculed in red colour stating that he had written the mobile number and his name as Rahul in that diary.
95. On being cross examined by Sh. R.P. Tyagi, Ld. counsel for accused Aman, this witness deposed that he stated to the police that Manju told him that she is from Nepal. This fact was confronted with statement Ex.PW27/DA where it is not so recorded. This witness deposed that he had stated to the police that she had made two calls from his mobile phone after seeing the number from her diary but the phone did not get connected. This fact was confronted with statement Ex.PW27/DA where it is not so recorded. This witness further deposed that he had also stated to the police that She was having a railway ticket to Jallandhar. This fact was also confronted with statement Ex.PW 27/DA where it is not so recorded.
SC No.47/2014 State Vs. Bal Kishan etc 26/7796. This witness further deposed that he had met Manju at the platform near the exit gate which opens towards the Kashmeri Gate. As far as he know, trains from Jammu, again said, Jaisalmer comes at that platform at the same time when his train also reaches there. This witness admitted that he used to come by a train namely Janta express which comes from Saharanpur via Badot, Shamli, Bagpat & Kekra. This witness had denied to the suggestion that he is deposing falsely at the instance of IO or that he is planted witness. This witness had denied to the suggestion that he did not write his mobile number in the diary of Manju.
97. PW28 Dr. Prashant Goel. This witness has been working as Consultant with Manas Foundation for last 04 years. This witness deposed that on 29.04.2014 he examined prosecutrix in Nari Niketan at Nirmal Chhaya Complex. On examination, she was found to be laughing excessively, singing songs, showing abusive and aggressive behaviour. She had also a history of decreased sleep. She was diagnosed subsequently.
98. PW28 further deposed that she was again examined on 01.05.2014 by him.
She was noncompliant to medication prescribed and found to be unmanageable at Nari Niketan, Nirmal Chhaya. So, he referred her to IHBAS for further management and treatment. This witness has proved his report alongwith other treatment papers vide Ex. PW28/A [colly] [running into 06 pages].
99. PW29 Ct. Ravinder Singh. This witness has also deposed on the same line as deposed by PW25 Ct. Amit Kumar.
SC No.47/2014 State Vs. Bal Kishan etc 27/77100. This witness was cross examined by learned Addl. PP for the State as his statement was not in full consonance with his earlier statement.
101. In his cross examination by Ld. Addl. PP for the State, this witness admitted that the number about which inquiries were made by the IO at ODRS was 8130644931. This witness further admitted that IO seized two bed sheets, one gamchha and one mat from the spot ie. Room at Sanitary Depot, near Aushodhalaya.
102. This witness further admitted that accused persons pointed out another spot at phool mandi. This witness further admitted that he could not recollect all the aforesaid facts and identity of accused due to lapse of time.
103. This witness has correctly identified register vide Ex.PW6/B. This witness further deposed that the photographs Ex.PW1/1 to Ex.PW1/4 are of the same car which was seized by the IO. This witness admitted that from the room at Sanitary Depot, Nagar Nigam Aushdhalya, Yamuna Bazar, Delhi, IO collected one Gamchha (Towel), two bedsheets and one mat and that the same were sealed separately with the seal of MY and seized vide seizure memo Ex.PW29/G bearing his signatures at point A. This witness admitted that IO/SI Meena Yadav prepared the site plan on the spot of the said place which is Ex.PW29/H.
104. This witness has correctly identified one mobile phone of make NOKIA X2 bearing IMEI no.358615044057241, to be the same which was recovered SC No.47/2014 State Vs. Bal Kishan etc 28/77 from the possession of accused Rahul and the same is Ex.PW29/P1. This witness has correctly identified Rs.30/ of Nepali currency in the denomination of one currency note of Rs.20/ and two currency notes of Rs.5/ each to be the same which were recovered from the possession of accused Rahul and the same are Ex.PW29/P2 colly. This witness has correctly identified one card of Primus Solution Enterprises bearing the photograph of accused Rahul to be the same which was recovered from the possession of accused Rahul and the same are Ex.PW29/P3. This witness has also correctly identified one mobile phone of make SAMSUNG bearing one sim of TATA Indicom, to be the same which was recovered from the possession of accused Sunny and the same is Ex.PW29/P4. This witness has also correctly identified one Gamchha (Towel) of white and pink colour, which was recovered from the spot and the same is Ex.PW29/P5. This witness has correctly identified one bedsheet to be the same which was recovered from the spot and the same is Ex.PW29/P6. This witness has identified one bedsheet to be the same which was recovered from the spot and the same is Ex.PW29/P7.
105. On being cross examined by Sh. R.P.Tyagi, ld. counsel for accused Aman, this witness deposed that disclosure statement of accused Rahul was recorded by the IO at Sanitary Depot but he does not remember the exact place. He deposed that the room was open at the time when they reached there. The room was about 8 X 10 feet approximately. He further deposed that only IO and accused Rahul went inside that room and the other police party remained outside of that room. He further deposed that the mattress, bedsheets and Gamchha were seized by the IO after about one hour of our reaching there.
SC No.47/2014 State Vs. Bal Kishan etc 29/77These articles were seized by the IO inside the room when he went there alongwith accused Rahul. This witness deposed that the IO prepared the pullandas of these articles inside that room and they saw only the pullandas of these articles and the IO told them that about the contents of the pullandas after coming out. This witness admitted that there are old residential houses near that room and the families were living in those houses adjoining that room. He further deposed that they remained outside that room for about one hour and the house of accused Aman is at a distance of about 200 to 300 metre from that room. He further deposed that they did not reach upto the house of accused Aman as he met them in the gali at some distance from his house. Due to this reason, I cannot tell about the topography of house of accused Aman. He further deposed that that he cannot say if the house of accused Aman was visible or not from the place, from where he was apprehended. This witness deposed that when accused Aman was interrogated, no public person or neighourer was called. This witness had denied to the suggestion that accused Aman was not apprehended from there or that all the writing work was done by the IO while sitting in the PS and he signed those documents in the PS or that they never visited the room at Sanitary Depot, Yamuna Bazar or that no such articles like Gamchha etc were seized by the IO from any such room.
106. On being cross examined by Sh. Tarun Arora, Ld. counsel for accused Bal Kishan, this witness deposed that no public person was present or available at the time of arrest of accused Bal Kishan. He adopt the remaining cross examination already conducted on 07.09.2015 on behalf of accused Aman.
SC No.47/2014 State Vs. Bal Kishan etc 30/77107. PW30 Ct. Harbhajan. This witness deposed that on 31.05.2014, at request of IO/SI Meena Yadav, he handed over the recording of CCTV footage dated 24.04.2014 of Camera No.92, 93, 96 & 136 installed at Platform No.16 of ODRS to the IO in a CD, which IO seized vide seizure memo already Ex.PW 25/G. This witness has proved the CD vide Ex.PW30/P1. PW30 further deposed that there is no tampering in the footage and the CD Ex.PW30/P1 contains the original footage and the certificate under Section 65B Evidence in this regard is Ex. PW30/A.
108. On being cross examined by Sh. R.P.Tyagi, Ld. counsel for the accused Aman, this witness denied to the suggestion that he has given the wrong footage of these cameras as per the wishes of the IO. The cameras affixed at ODRS contain recording for a period of 30 days after which automatically deleted. IO gave application for obtaining the CCTV footage on 31.5.2014 itself.
109. On Court Question : How the CCTV footage of 24.04.2014 was handed over to the IO if it is automatically deleted after 30 days. In reply, this witness deposed that the CCTV footage had been preserved by him as IO had requested him verbally to preserve it. He does not remember the date when IO made this request for preserving the CCTV footage of 24.04.2014.
110. This witness had denied to the suggestion that the IO never made any such oral request for preserving such CCTV footage or that the recording contained in CD Ex.PW30/P1 is fabricated and manipulated at the instance of IO. This witness deposed that he prepared the CD from the CCTV system on SC No.47/2014 State Vs. Bal Kishan etc 31/77 31.05.2014 and then handed over to the IO. This witness deposed that the blank CD was produced by the IO on which he copied the footage and handed over the same to IO. He had stored the CCTV recording of 24.04.2014 on desktop computer. This witness admitted that he was not on duty from 2:40 to 3:20 PM on 24.04.2014
111. PW31Ct. Ravinder. This witness had conducted medical examination of accused persons namely Sunny, Rahul, Aman and Bal Kishan and after the medical examination of above said four accused persons, the doctor handed over me sealed pullandas with sample seals and I handed over the same to IO of PS Subzi Mandi. IO seized the same vide memo Ex. PW31/A to Ex. PW31/D each bearing my signatures at point A. During the tenure the above said pullandas remained in my possession, they were not tampered with in any manner.
112. On being cross examined by Sh. R. P. TyagiLd. Counsel for accused Aman, this witness deposed that there were four pullandas which he handed over to the IO.
113. PW32 SI Meena Yadav is the IO of the case and she has proved investigations of the case as conducted by her. This witness on 25.04.2014 pursuant to a call vide DD No. 6, Ex. PW32/A, reached the place of incident i.e. Phool Mandi, Rain Basera, Kucha Mohtar Khan, Mori Gate, Delhi and when she reached there, SI Pradeep, Ct. Dharmender and Ct. Amit were already present. She further deposed that in the meantime, W. Ct. Shipra also reached the place of incident. ACP and DCP of the area were also present.
SC No.47/2014 State Vs. Bal Kishan etc 32/77Prosecutrix and one Khushi Ram, who had made the said call were also present. She alongwith SI Pradeep, W. Ct. Shipra, Ct. Amit and Dharmender took the prosecutrix to Aruna Asaf Ali Hospital and got her medically examined. Thereafter, she recorded the statement of prosecutrix Ex. PW1/A and made endorsement thereon at point B to B and to the present FIR registered through Ct. Amit. The examining doctor of the prosecutrix had also handed over to me the exhibits pertaining to her including her undergarments which she was wearing at the time of her medical examination in sealed condition. PW32 took the same into possession vide seizure memo Ex. PW32/B. This witness had prepared site plan at the instance of prosecutrix vide Ex. PW1/C. This witness further deposed that Crime Team was also called at the scene of crime and they inspected the same. This witness has proved crime team report vide Ex.PW14/A. In his presence, Member of the Crime Team had also taken photographs Ex. PW21/P1 to Ex. PW21/P3.
114. During the course of investigation, on 25.04.2014 prosecutrix had also handed over her a diary wherein she had mentioned the mobile number of the two boys from whom she had sought help from railway station. This witness had taken the same into possession vide memo Ex. PW1/D. This witness has proved the said diary vide Ex. PW1/E.
115. During the course of investigation, on 27.04.2014, this witness examined Krishna, Manger of the Primus Company and recorded his statement. This witness also taken into possession the attendance register showing presence of Rahul in the company on different dates vide seizure memo Ex.PW6/A. This SC No.47/2014 State Vs. Bal Kishan etc 33/77 witness has identified the said register vide Ex.PW6/B. This witness has arrested the accused Rahul vide arrest memo Ex. PW29/A and conducted his Personal search vide personal search memo Ex.PW25/A. This witness has recorded disclosure statement of accused Rahul vide Ex. PW25/B. This witness has prepared pointed out memo of second place of incident at Phool Mandi vide memo Ex. PW32/B at the instance of accused. Accused had also led them to the first place of incident at a room near Ayurvedic Ayushdhalaya, Sanitary Depot, Yamuna Bazar, Delhi. This witness has prepared pointing out memo in this regard vide Ex. PW32/C. This witness had also taken into possession the Nokia mobile phone of the accused without SIM, his ID of Primus Solution Enterprises and three Nepali Currency notes comprising one currency note of Rs. 20/ and two currency notes of Rs. 5/ vide seizure memo Ex. PW29/B. The said items were recovered from the pocket of the shirt of the accused. The said items were converted into parcel, sealed with the seal of 'MY'.
116. This witness has also arrested accused Sunny vide arrest memo Ex.PW29/C at the instance of accused Rahul and his personal search was also conducted vide memo Ex.PW25/C and recorded disclosure statement of accused Sunny vide memo Ex. PW25/D.
117. During the course of investigation this witness has also arrested accused Aman vide arrest memo Ex.PW29/E and his personal search was conducted vide memo Ex.PW25/E and his disclosure statement was recorded vide Ex. PW25/F. PW32 further deposed that thereafter, accused Sunny and Aman led them to the room where the incident had taken place and while they were on SC No.47/2014 State Vs. Bal Kishan etc 34/77 the way, they spotted the accused Mohan. Since he was juvenile, she apprehended him and his custody was handed over to SI Pradeep Rai for further proceedings.
118. During the course of investigation, accused Bal Kishan was arrested vide arrest memo Ex.PW29/F at the instance of accused Rahul and Sunny and his personal search was also conducted vide memo Ex.PW32/D and recorded disclosure statement of accused Sunny vide memo Ex. PW32/E.
119. PW32 further deposed that before the arrest of accused Bal Kishan, she had also called the Crime Team at the place of incident i.e. a room at Sanitary Depot, Jamuna Bazar, which was taken by JCL Mohan on rent. Crime Team officials inspected the said room, prepared the report Ex. PW13/A and gave it to her. The photographer from Crime Team had also taken photographs already Ex. PW18/A, Ex. PW18/B, Ex. PW13/DA and Ex. PW18/C.
120. PW32 further deposed that at the pointing out of accused Aman, after his arrest, she had also taken into possession the car shown in the photograph Ex. PW1/P1, Ex. PW1/P2, Ex. PW1/P3 and Ex. PW1/P4 vide seizure memo Ex. PW32/F.
121. During the course of investigation, accused Sunny had also pointed out the aforesaid room at Sanitary Depot vide pointing out memo Ex. PW32/G and accused Aman had also pointed out the aforesaid room at Sanitary Depot vide pointing out memo Ex. PW32/H. SC No.47/2014 State Vs. Bal Kishan etc 35/77
122. During the course of investigation, accused Bal Kishan had also pointed out the aforesaid room at Sanitary Depot vide pointing out memo Ex. PW32/I and accused Bal Kishan had also pointed out the second place of incident at Phool Mandi, Mori Gate vide memo Ex. PW32/J.
123. During the course of investigation, all the four accused persons namely Rahul, Sunny, Aman and Bal Kishan were got medically examined and on next day i.e. 28.04.2014 the forensic medical examination of the aforesaid accused persons were got conducted. PW32 further deposed that the MLC prepared qua accused Sunny in this regard is Ex. PW32/K and Ex. PW32/L, MLC prepared qua accused Rahul in this regard is Ex. PW32/M and Ex. PW32/N, MLC prepared qua accused Aman in this regard is Ex. PW32/O and Ex. PW32/P and MLC prepared qua accused Bal Kishan in this regard is Ex. PW32/Q and Ex. PW32/R.
124. PW32 further deposed that the exhibits/clothes pertaining to aforesaid accused persons were handed over to Duty Ct. alongwith sample seal, who further handed over to her. The seizure memo prepared by her in this regard qua accused Rahul is Ex. PW31/A, the seizure memo prepared qua accused Aman Ex. PW31/B, the seizure memo prepared qua accused Bal Kishan Ex. PW31/C and the seizure memo prepared qua accused Sunny Ex. PW31/D.
125. This witness had deposited the exhibits pertaining to the aforesaid accused persons in the malkhana and on 01.05.2014, she had got sent the exhibits pertaining to the accused persons and the prosecutrix to FSL, Rohini through Ct. Amit.
SC No.47/2014 State Vs. Bal Kishan etc 36/77126. PW32 further deposed that on 02.05.2014, she had produced the prosecutrix before the concerned Court for recording her statement u/s 164 Cr.P.C. She had moved an application in this regard before the concerned Magistrate vide application Ex.PW32/S. On that day statement of the prosecutrix could not be recorded as prosecutrix was not feeling well hence application was adjourned for 16.05.2014. An order was also passed to send the prosecutrix to IHBAS Hospital.
127. PW32 further deposed that on 16.05.2014, statement of the prosecutrix again could not be recorded for wants of her medical report from IHBAS Hospital. Finally statement of the prosecutrix u/s 164 Cr.PC could be recorded on 19.05.2014 at IHBAS Hospital with the help psychiatric as her medical condition was not well. PW32 further deposed that the said statement was also got videographed and CD to this effect was prepared vide Ex.PW5/B.
128. This witness has proved statement of prosecutrix u/s 164 Cr.PC, Ex.PW1/B.
129. During the course of investigation, this witness had also obtained CDR pertaining to the mobile numbers of the accused Wasim @ Sahil and other co accused Mohan (since juvenile).
130. During the course of investigation, on 22.05.2014, she had arrested the accused Wasim @ Sahil, present in the court (correctly identified by the witness) vide arrest memo already Ex.PW22/A bearing her signature at point B and his person search was also conducted vide personal search memo SC No.47/2014 State Vs. Bal Kishan etc 37/77 already Ex.PW22/B bearing her signature at point B. This witness also recorded his disclosure statement vide Ex.PW32/V. Accused Wasim was also got medically examined qua his potency to perform sexual intercourse under normal circumstances vide MLC already Ex.PW22/C. This witness had taken into the possession of exhibits pertaining to accused Wasim alongwith sample seal vide seizure memo already Ex.PW22/D.
131. During the course of investigation, this witness had obtained copy of TIP proceedings of all accused persons. All the aforesaid accused persons had refused to participate in their TIP proceedings.
132. During the course of investigation, on 31.05.2014, she had obtained the relevant CCTV footage of Old Delhi Railway Station in DVD from RPF Constable Harbhajan Singh vide seizure memo already Ex.PW25/G. Seizure memo Ex.PW25/G was prepared by Ct. Amit who was with her at that time.
133. During the course of investigation, on 27.04.2014, after inspection of scene of crime carried out by the crime team officials, she had also taken into possession two bed sheets, one mat and one towel, converted the same into four several parcels, sealed them with the seal of MY and seized them vide seizure memo already Ex.PW29/G bearing her signature at point B. This witness has correctly identified the accused persons namely Rahul, Bal Kishan, Sunny, Aman and Mohd. Wasim. This witness has correctly identified Nokia Mobile phone which was recovered from the possession of accused Rahul vide Ex.PW29/P1.
SC No.47/2014 State Vs. Bal Kishan etc 38/77134. This witness has also correctly identified three Nepali currency notes of Rs.20/ and two currency notes of Rs.5/ each to be the same currency notes which were recovered from the possession of accused Rahul vide Ex.PW29/P2.
135. This witness has proved the ID of the accused Rahul @ Raghu of Primus Company vide Ex.PW29/P3.
136. This witness has correctly identified one black color Samsung mobile phone with SIM card of Tata company to be the same mobile phone and SIM card which were recovered from the possession of accused Sunny vide Ex.PW29/P4.
137. This witness has also correctly identified one brassier and one black color underwear to be the same under garments of prosecutrix which were taken into possession by the doctor who had conducted her medical examination and the same were given to him vide Ex.PW32/P1 and Ex.PW32/P2 respectively.
138. This witness has also correctly identified one lady shirt and one pant to be the same clothes of prosecutrix which were taken into possession by the doctor who had conducted her medical examination and the same were given to him vide Ex.PW32/P3 and Ex.PW32/P4 respectively.
139. This witness has also identified one towel/Gamchha to be the same towel/Gamchha which was recovered from the place of incident at Yamuna SC No.47/2014 State Vs. Bal Kishan etc 39/77 Vihar vide Ex.PW29/P5.
140. This witness has also correctly identified one bed sheet to be the same bed sheet which was recovered from the place of incident at Yamuna Vihar vide Ex.PW29/P6.
141. This witness has also correctly identified one bed sheet to be the same bed sheet which was recovered from the place of incident at Yamuna Vihar vide Ex.PW29/P7. The vehicle bearing registration no. DL3CAA3297 is now exhibited as P5.
142. In her cross examination by Sh. R.P. Tyagi, ld. counsel for accused Aman, this witness deposed that they had sent Ct. Amit along with rukka to PS from the hospital at about 08.30 am and he reached at Phool Mandi along with copy of the FIR and rukka at about 09.10 am. He had mentioned in site plan the spot where prosecutrix had met them for the first time.
143. On Question: I put to you that can you show the place in the site plan where the prosecutrix had met us for the first time? In reply, this witness deposed that she had not mentioned the aforesaid fact in her site plan.
144. This witness deposed that crime investigation team had also reached at the spot almost at the same time when she had reached the spot. It is admitted that on 26.04.2014 statement of prosecutrix under section 164 Cr.PC could not be recorded as she was not in a fit state of mind. This witness had denied to the suggestion that on 25.04.2014 the prosecutrix was not in fit state of SC No.47/2014 State Vs. Bal Kishan etc 40/77 mind or that she had got recorded her statement wrongly. This witness deposed that seizure memo in respect of diary produced by the prosecutrix is Ex.PW1/D bearing the signature of Ct. Shipra at point C.
145. This witness admitted that there is a 'Rain Basera' on the footpath connecting to Phool Mandi. No person met them in the 'Rain Basera' at that time. Chowkidar of the 'Rain Basera' was also not found present. This witness had denied to the suggestion that Khushi Ram is a false witness.
146. This witness deposed that they remained 15 minutes at the room of Sanitary Depot, where accused Rahul had taken them. She had prepared pointing out memo Ex.PW32/C at the instance of accused Rahul. This witness deposed that SI Prakash, SI Pradeep Rai and three constables were with him at that time along with accused Rahul.
147. PW33 Dr. V. Shankar Narayanan, Sr. Scientific Officer. This witness deposed that he started reporting DNA cases from the year 2012 and so far he has examined approximately 300 such type of cases. He has more than 26 years experience in this field.
148. This witness deposed that on 01.05.2014, 17 sealed parcels were received in their office from the SHO, PS Subzi Mandi for their examination in the present case.
149. This witness further deposed that on 26.05.2014 two more sealed parcels were received for their examination in the present case. The said parcels containing SC No.47/2014 State Vs. Bal Kishan etc 41/77 exhibits pertaining to this case were marked to him for DNA examination. The descriptions of the seal are mentioned in his DNA report. He had examined the aforesaid exhibits containing the aforesaid sealed parcels and prepared a detailed DNA report in that regard. This witness has proved his report vide Ex.PW33/A running into 5 pages bearing his signature at points A on each page. The said report was forwarded to the SHO, PS Subzi Mandi vide forwarding letter Ex.PW33/B.
150. This witness further deposed that DNA profiling was performed on the source exhibits 4 i.e. towel and it was found sufficient to conclude that they were similar to the DNA profile from the source of exhibit 15 i.e. gauze cloth piece of accused Aman. This witness further deposed that the allelic data chart qua the said DNA examination is enclosed with the report as Annexure 1.
151. In his cross examination by Sh. R.P. Tyagi, ld. counsel for accused Aman, this witness deposed that he does not remember the date when he had examined the towel. This witness had denied to the suggestion that no such towel was examined by him. This witness had denied to the suggestion that he had not adopted the proper procedure for the purpose of DNA examination. This witness further denied to the suggestion that she made false report regarding the similarity of exhibit 4 with the source of exhibit 15.
152. PW34 Dr. Dinesh Yadav has proved the MLC of accused Mohd. Wasim @ Sahil vide Ex.PW22/C on behalf of Dr. Vivek, CMO, Hindu Rao Hospital, Delhi.
SC No.47/2014 State Vs. Bal Kishan etc 42/77153. PW35 Dr. Varun Garg has proved the MLC of accused Mohd. Wasim @ Sahil vide Ex.PW35/A on behalf of Dr. Vijay Kumar. On the basis of the findings in aforesaid MLC, he is also of opinion that there is nothing to suggest that patient/accused was incapable to perform sexual intercourse.
154. PW36 Dr. Mahima has proved MLC of accused Rahul @ Raghu vide Ex.PW32/M and MLC Ex.PW32/O qua the medical examination of the accused Aman @ Sonu on behalf of Dr. Sugandha.
155. PW37 Dr. Megha Aggarwal has proved the MLC of accused Bal Kishan @ Karvaya on behalf of Dr. Deepal Thapa, the then SR, Department of Anesthesia, Hindu Rao Hospital, Delhi vide Ex.PW32K qua the medical examination of the patient/accused Sunny and MLC Ex.PW32/Q qua the medical examination of the patient/accused Bal Kishan @ Karvaya.
156. PW38 Dr. Abhishek Pachauri has conducted medical examination i.e. potency test of accused persons namely Sunny, Rahul @ Raghu, Aman @ Sonu and Balkishan and proved their MLC vide Ex.PW32/L, Ex.PW32/N, Ex.PW32/P and Ex.PW32/R respectively.
157. On being cross examined by Sh. R.P. Tyagi, ld. counsel for accused Aman @ Sonu, this witness deposed that smegma was present on the penis of the accused Aman @ Sonu at the time of his medical examination. As per his knowledge, it is not necessary that smegma remains present after sexual intercourse in each and every case.
SC No.47/2014 State Vs. Bal Kishan etc 43/77158. PW39 Ct. Bhopal Singh is the DD Writer at Police Post, Tis Hazari, PS Subzi Mandi. This witness has brought original DD register and proved the true copy of the same vide Ex.PW39/A. STATEMENT OF ACCUSED U/S 313 CR.P.C.:
159. After the prosecution evidence, statement of the accused persons u/s 313 Cr.P.C. were recorded. Accused persons claimed that they are innocent have falsely implicated in the present case. As accused persons have not claimed for defence evidence, accordingly, D.E. is closed. Thereafter, case was fixed for arguments.
ARGUMENTS;
160. Ld. Addl. PP for the State submitted that prosecution has been able to bring on record overwhelming clinching evidence to prove the guilt of the accused persons in the commission of the offence they are charged for. As the circumstance brought on record either leading to the arrest of accused persons one after another, recovery of incriminating material at their instance coupled with the dock identification by the prosecutrix following their refusal to participate in the TIP proceedings clearly prove the guilt of the accused persons in this case.
161. Ld. Addl. PP for the State further submitted that the peculiarity of this case is that prosecutrix is lady from a rustic background having weak level of understanding, and as such her testimony should be appreciated keeping in mind the said fact.
SC No.47/2014 State Vs. Bal Kishan etc 44/77162. Ld. Addl. PP for the State further submitted that in view of law laid down by the Hon'ble Supreme Court, though corroboration is not necessary in order to prove guilt of the accused particularly in such offences but prosecution in this case has successfully brought on record number of corroborative evidence to support the version about the incident as put forth by the prosecutrix and the circumstances narrated by her.
163. Ld. Addl. PP for the State further submitted that prosecution has also brought on record a very crucial scientific evidence in the form of DNA which matched with the DNA profile of coaccused Aman. The evidence of positive DNA in a case of gang rape always gives impetus to the case of prosecution to conclusively prove the incident and if any of the accused being a member of the group committed the offence of rape on prosecutrix, then all his associates being members of same group would also be held liable of the offence of gang rape.
164. Ld. Addl. PP for the State further submitted that prosecution has successfully brought on record numerous circumstances to prove the fact that the accused persons belong to one and same group known to each other even prior to the incident and in furtherance of their common intention they abducted prosecutrix and committed gang rape on her.
165. Ld. Addl. PP for the State further submitted that qua the charge of gang rape, prosecution is required to prove that accused persons constitute a group and in furtherance of their common intention committed the offence and circumstances brought on record by prosecution in this case clearly prove the SC No.47/2014 State Vs. Bal Kishan etc 45/77 said facts.
166. On the other hand, Sh. R.P. Tyagi, Ld. counsel for accused Aman argued and submitted that the case of prosecution is rests solely on the statement of PW1 Prosecutrix. There are serious contradictions and material improvements in her statement before the court and in her previous statement u/s 164 Cr.P.C. and her complaint Ex.PW1/A. In her statement she had improved a lot by stating that while waiting for the train she went outside the railway station for eating some food along with Rahul and after that Rahul immediately left from there. She also stated that " I noticed that the name of the boy, was Raghu which was inscribed on his wrist." She also stated that "when I started waiting for next train to Jallandhar which was scheduled for departure at about 4:00 p.m. and as I had some time I asked Raghu about any place which I could visit and he took her to Samadhi of Mahatma Gandhi and India Gate on foot. She also stated in chief that after some time she requested him to take back her to railway station but he made a call to someone and when they were walking from India Gate towards railway station, she saw one car and Raghu asked her to sit in that car stating that they will reach railway station early in the car. She also stated in chief that they took her to the house of one of those boy and confined her in that room. She also stated in chief that they brought her to Subzi Mandi in same car and Raghu assured her that he will take her to the house of her sister. She also stated in chief that they had thrown him Subzi Mandi after the incident. These averments she had not stated in her statement before the Ld. MM which Ex.PW1/B. SC No.47/2014 State Vs. Bal Kishan etc 46/77
167. Ld. counsel further submitted that she also stated in chief that after sometime two persons came on a motorcycle and asked her the reason for her cry and she told them about the incident and then police official came at Subzi Mandi. This witness was duly confronted with her statement Ex.PW1/A and Ex.PW1/B. In her cross examination on behalf of accused Aman where she had admitted that she did not tell to the police in her statement Ex.PW1/A that after sometime two persons came on motorcycle. Although stated voluntarily they were already present when police reached there. She was duly confronted with the fact that while waiting for the train she went outside the railway station for eating some food along with Rahul and that after sometime Rahul left from there and she returned to the railway station and that Rahul did not take up the phone and then she started waiting for next train for Jallandhar which was scheduled for departure at about 4:00 p.m. and that she asked Raghu about any place which she could visit and then he took her to Samadhi of Mahatma Gandhi and India Gate on foot and that after sometime she requested him to take her back to railway station but he made a call to someone and when they were walking from India Gate towards railway station, she saw one car and Raghu asked her to sit in that car stating that they will reach railway station early in the car and that instead of taking her to railway station they took her to the house of one of those boy and confined her in that room and that they brought her to Subzi Mandi in same car.
168. Ld. counsel for accused further submitted that when statement of PW1 was recorded, she was not in fit state of mind because when she was produced before the magistrate on 26.04.2014 her statement could not be recorded and on the order of Ld. MM she was sent to IHBAS for proper care and medical SC No.47/2014 State Vs. Bal Kishan etc 47/77 treatment and after her medical treatment her statement u/s 164 Cr.P.C. was recorded which is Ex.PW1/B. She herself admitted in cross examination on page No.11 dated 02.08.2014 that on 25.04.2014 she was quite upset and disturbed.
169. Ld. counsel for accused further submitted that the place of alleged incident of rape as per the prosecution was at two places i.e. one at MCD Store, Jamuna Bazar and another at Subzi Mandi near Morigate. This place of incident i.e. MCD store at Jamuna Bazar was neither stated by the prosecutrix nor she was taken to that room for identification and I.O. himself stated that it was the place of incidence after the disclosure statement of accused Rahul who was first arrested in this case and later on disclosure statement of other accused persons on the same line saying that the same was the place of incidence but the prosecution has miserably failed to prove that it was the place of incident. PW1 in cross examination stated that she was unable to identify those two places where the rape was committed and on court question she stated that she did not point out the place of incident to the police and she had signed the site plan Ex.PW1/C at the police station on asking of police. She stated about topography of said room on page 5 on the cross examination dated 02.08.2014 that there was a small bulb attached to battery in the room where rape was committed upon him at the first incidence as such there was some light in that room. She also stated that room was a kaccha room and the car was parked in courtyard of the house and in order to reach that room they climbed one stair case and came down from another stair case and they reached that room at about 2:00 - 3:00 p.m. and left from there at 6:00 7:00 p.m. when it become dark.
SC No.47/2014 State Vs. Bal Kishan etc 48/77170. Ld. counsel for accused further submitted that the topography of this room given by other witnesses contradict PW1 as PW10 Ankit in cross examination that the said MCD store is godown type but he cannot tell its exact dimension and he used to lock the said godown when he was using to store its goods. He also stated that there is electricity connection in the MCD store. He also stated that Juvenile Mohan also used to put his lock on the store and the police did not take him to the store room on 11.05.2014 as police took where the key of the lock which he placed on the said store room when police came to him on 11.05.2014.
171. Ld. counsel for accused further submitted that PW18 Ct. Sudesh Kumar, Photographer stated in cross examination that he reached at the place of incident at 6:30 p.m. on 27.04.2014 and he parked their official vehicle at about 300400 distance from that room and in order to reach the said room, they have crossed a park after parking the car. He further stated that there was no electricity supply in the room during the period he remained there and he took the photographs by using the flash of mobile camera as well as torch of his mobile phone. He also stated that the said room was bolted from outside when they reached there.
172. PW25 Ct. Amit on page No.3 of cross examination dated 17.08.2015 stated that on the left of that room there is MCD store and there was no room on the right side of room and there is also no residence on the first floor of the house and they reached in that room from railway station after crossing chhota railway bridge and then took to railway line in that sanitary depot. This fact SC No.47/2014 State Vs. Bal Kishan etc 49/77 contradict PW1 as she stated that the said room was situated on kacha rasta. PW25 further says that there was a electricity connection in that room and the electricity bulb was switched on as it was evening time. He also stated that the said room was locked at that time and he himself went to the house of landlord for calling him at the instance of the I.O. Then he opened the lock of the room.
173. It is further submitted that no offence of rape was committed at Subzi Mandi as stated by the prosecutrix in her examination in chief. It is submitted that when she was examined u/s 164 Cr.P.C. before the Ld. MM she never stated that she was subjected to rape at Subzi Mandi. The statement is Ex.PW1/B where the prosecutrix stated that rape was committed in a room and all the accused persons committed rape one by one and there were two other persons also and the total number of accused were seven and she remained there and after some time she heard noise of bike and she throw her underwear there as it become dirty and told this fact to bike persons and thereafter, she was taken to police station. In cross examination, PW1 could not identify the said place at Subzi Mandi. The said underwear was not recovered by the police from the place and in order to cover her false statement she stated that she had taken bath at about 4:00 a.m. Her underwear was seized by the doctor and on examination no proof of alleged rape was found on the said underwear. She had admitted in cross examination P9 dated 04.08.2014 that she was not carrying any other underwear with her in her bag when she left from Nepal. These statement of PW1 contradicted by PW32 in cross examination dated 01.09.2016 P.1 and 2 where the I.O. stated that they reached to Mori Gate Phool Mandi (Subzi Mandi as alleged by the prosecutrix), at about 2:30 a.m. SC No.47/2014 State Vs. Bal Kishan etc 50/77 and thereafter, she took prosecutrix to hospital and again to Phool Mandi and after investigation she reached police station in the evening time at about 4:00 or 5:00 p.m. alongwith the prosecutrix. Therefore, there was no question of taking the bath by the prosecutrix as alleged by her. So there is no medical evidence of rape as there was neither any injury on the person of the prosecutrix including her private part nor there is any injury on the person of any accused. The story of gang rape is thus has no evidence at all. The statement of prosecutrix is not trustworthy nor there is any place of such incidence proved by the prosecution.
174. It is further submitted that no adverse inference can be drawn against the accused persons for refusing the TIP as all the accused persons stated that their photographs were taken before the TIP and they were shown to the witness. In this respect it is submitted that PW1 in examination in chief first stated that she does not remember the faces of the persons who have raped her as it has been three months since day of incident and after seeing of accused persons in the court she further stated that she cannot identify any of the accused persons except Raghu and thereafter after sometime she again looked at the accused persons in the court and identify all of them as the persons who had raped her. In cross examination on page 4 dated 02.08.2014, she stated that she remained in the police station for 34 days and during 34 days she told the name of the accused to the police but there is no statement of this witness to this effect. She also admitted that the police also told her the name of those boys appearing in those photographs and said photographs were shown to her after about 12 months in IHBAS.
SC No.47/2014 State Vs. Bal Kishan etc 51/77175. It is further submitted that the said offence of rape was committed in a room which had either has no electricity or very dim electricity as has come in evidence and in the dark night at Subzi Mandi where she could not see faces of the accused persons and must have seen the accused persons for first time while committing the alleged rape but she had seen those two persons who were on the bike at 2:00 a.m. and in the morning also in the PS but she stated in cross examination at P.8 dated 02.08.2014 that she cannot identify those two persons. When she cannot identify those two persons how she can identify the persons who all allegedly committed in that dark place except 23 persons who met her at the railway station. PW32 I.O. of the case in cross examination dated 08.12.206 P.4 admitted that dozzier of all the accused persons except accused Wasim was prepared on 28.4.2014. She also admitted that photographs, finger print and foot print of accused persons were also taken during dozzier proceedings. Although, she denied that she had not shown those photographs to the prosecutrix.
176. It is further submitted that accused persons were arrested on 27.04.2014 except accused Wasim and on the next day their photographs were taken by the I.O. The TIP proceedings were got conducted only on 27.05.2014 i.e. after about a month of arrest of the accused persons. In between this period, accused were produced in court twice for judicial remand and in unmuffled faces.
177. It is further submitted that accused Aman was not member of gang as alleged by the prosecution. The prosecutrix PW1 in examination in chief stated that there were five persons in the car in which they reached that room from India SC No.47/2014 State Vs. Bal Kishan etc 52/77 Gate but in the court she identify in general way six persons who present in the court. Accused Aman is involved in a case due to the car of his father. PW1 in her both statement PW1/A and PW1/B did not mention about car but mentioned the Van and in cross examination on behalf of accused Aman dated 02.08.2014 P.3 she admitted that van is different from car and she had mentioned van in her complaint Ex.PW1/A and not car. She mentioned the colour of the van as blue. She was duly confronted with her statement about mention of the car in her examination in chief with her previous statement Ex.PW1/A and PW1/B. She also stated in cross examination dated 04.08.2014 P.2 that she came to know the name of accused Aman after 12 days of his arrest but she did not tell his name in her statement Ex.PW1/B on P.4 of cross examination. She stated that said car in which she was brought to the room was having courtyard and the courtyard was having boundary wall. The said car was seized by the police. The colour of the car as stated in the seizure memo is grey and not blue. Neither SI Pradeep Rai nor Ct. Dharmender has been produced by the prosecution to prove the seizure memo. There are contradictions regarding place and time of recovery of that car from near the house of accused Aman. Actually, this car was produced by the father of accused in P.S. along with accused.
178. PW25 Ct. Amit Kumar stated in chief that accused Sunny led them to the house of accused Aman but he was not present in the house and after waiting for sometime he was seen coming towards his house and was apprehended. His personal search and disclosure statement were prepared vide Ex.PW25/E and Ex.PW25/F. In cross examination, he stated that house of accused Aman is just opposite the house of Sunny and they saw the Aman from a distance of SC No.47/2014 State Vs. Bal Kishan etc 53/77 about 100 meters from the right side of his house and when he reached just near his house he was apprehended. He also stated that Accent car was parked behind the house of Aman by side of park and before that time the registration number was not known to the I.O. He also stated that no public person was asked to join the investigation at the house of Aman or at the time of seizure of the car. PW29 Ct. Ravinder in examination in chief page7 stated that Sunny led him to the house of Aman which was at some distance from his house and he was apprehended at the instance of Sunny. This witness could not identify accused Aman in the court, due to lapse of time as alleged by him. He also stated one Accent car appeared registration No.DL 3CAA3297 was parked near house of accused Aman was seized at the instance of accused Aman. However, in cross examination he stated that house of accused is distance about 200300 meters from that room (sanitary depot) and they did not reach upto house of accused Aman as he met us in the gali at some distance from his house and said Accent car was parked at distance of 10 meters from the place where accused Aman was apprehended. He could not tell the topography of house of accused Aman. He also could not tell the exact place where the disclosure statement of accused Aman was recorded by the I.O. He also stated that no public person or neighbourers were called when accused Aman was interrogated.
179. PW32 in cross examination dated 01.09.2016 stated that the house of accused Aman was situated at distance of about 5060 meters from the house of accused Sunny and about 100 meters from the aforesaid room. She stated that she recorded disclosure statement of accused Aman outside his house but no public persons has joined the investigation at that time. Thus the arrest and SC No.47/2014 State Vs. Bal Kishan etc 54/77 disclosure of accused Aman have not been proved by the prosecution due to these contradictions.
180. It is further submitted that one towel was seized by the I.O. from the said room (sanitary depot) and according to the DNA report its DNA was tallied with the blood gauze of accused Aman and not with any other accused. The recovery of alleged towel is not proved beyond reasonable doubt by the prosecutrix as there are serious contradictions in the statements of recovery witnesses who are police officials. The said recovery was not effected in the presence of any public persons. PW29 Ct. Ravinder in examination in chief stated that crime team investigated the spot and I.O. seized the mattress and prepared the site plan. This witness was cross examined by the Ld. Addl. PP for the State and in cross examination of Ld. Addl. PP for the State, he admitted it.
181. This witness was cross examined by Ld. Addl. PP for the State wherein he admitted that I.O. seized two bed sheets, one gamchha and one mat from the spot i.e. room at Sanitary depot. In cross examination on behalf of accused dated 07.09.2015, he stated that only I.O. and accused Rahul went inside the room and other police party remained outside of that room the mattress and bedsheet and gamchha were seized by the I.O. after about one hour of reaching there. Inside that room when they went there with accused Rahul. He further stated that I.O. prepared the pullanda of these articles inside that room and they saw only pullanda of these articles and I.O. told them about contents of the pullanda after coming out.
SC No.47/2014 State Vs. Bal Kishan etc 55/77182. PW25 Ct. Amit Kumar, although not a attesting witness to the recovery of towel and bedsheet but he stated in examination in chief dated 26.05.2015 that at the instance of accused persons one bed sheet and one mat was lying in the room which were seized. This witness was also cross examined by Ld. Addl. PP for th State where he admitted that the I.O. also seized another bedsheet and one gamchha from the spot on 27.04.2014. In cross examination on behalf of accused dated 17.08.2015, he stated that two bed sheets were lying on the bed and the mat was lying by the side of the bed. On page5, he stated that gamchha was about one meter in length but he cannot tell its width and colour. Description of towel has not come from the mouth of this witness except after recovery of the same. It is also draw doubt on the case of prosecution.
183. PW32 I.O. SI Meena Yadav stated that the crime team photographs inside the room which are Ex.PW18/A, B and Ex.PW13/DA and Ex.PW18/C. He also prepared site plan of that room which Ex.PW29/H. In the site plan, the I.O. has mentioned that A is the point which is wooden bed on which one bedsheet and one mat was found and from point B which is a rack from where another bedsheet was found. I.O. did not mention about the recovery of towel from that room in the site plan.
184. In cross examination dated 08.12.2016, she stated that she along with SI Prakash, SI Pradeep Rai, Crime team officials had entered inside the room but no accused had accompanied them there which contradict PW29 who says the entry of accused Rahul with the police. She further stated that the towel was found near the pillow of the bed and took photographs inside the room. She SC No.47/2014 State Vs. Bal Kishan etc 56/77 stated in his cross examination dated 15.04.2015 that bed was lying in the left side of the room and he could not tell where towel was lying in the room. Although he voluntarily stated that a bedsheet was lying on the bed.
185. PW13 SI Mohit Kumar who was incharge of Crime Team stated in examination chief that there was a red colour carpet under the bed sheet on the bed and one small towel of white and pink colour was lying near the pillow. In his cross examination, he denied the suggestion that the bed sheet and the pillow as seen in the document Ex.PW13/DA to Ex.PW13/DD are of white colour and not multicolour. He voluntarily deposed that it was dark in the said room, hence, due to excessive flash light of the camera, print and multicolour on the bed sheet and pillow are not clearly visible. However, he admitted that the small towel was not visible in photograph Ex.PW13/DA to Ex.PW13/DD. He voluntarily deposed that small towel might be behind the pillow and not visible in the photographs.
186. Ld. counsel for accused further submitted that due to these serious contradictions in the recovery of towel. The prosecution is unable to prove that the said towel was recovered from the said room. Even otherwise, there are other contradictions regarding photographs, electricity connection in the room, ownership of that room, tenancy of that room and not providing any documents about the room and its key in the court by the I.O. Recovery of towel doubtful. Therefore, its DNA report also cannot read against the accused Aman. Another circumstance that accused Aman is a gang member. The presence of smegma on the penis of the accused Aman at the time of his medical examination negates that he committed rape. There was no smegma SC No.47/2014 State Vs. Bal Kishan etc 57/77 present on the penis of other accused persons at time of their medical examination.
187. It is further submitted that accused Aman was not driver of the car as stated by PW1. It is prayed that accused Aman be acquitted from the charge.
188. Sh. Tarun Arora, Ld. counsel for Bal Kishan @ Karwaya argued that accused Bal Kishan was not named by the victim in her statement u/s 164 Cr.P.C. before the Ld. MM.
189. Further there is no scientific evidence against the accused Bal Kishan though involvement in the present offence as the DNA profile of accused Bal Kishan did not matched that with of which was found on the victim.
190. Further, the victim had admitted that she had been shown the photographs of the accused by the police officials and she was told that these were the persons who had raped her.
191. In her deposition before the court, the victim had admitted in her cross examination that accused Bal Kishan was not that person who had accompanied her initially from old Delhi Railway Station as such the accused has not been identified by the victim. Nor there is any scientific evidence to link the accused with the alleged offence.
192. Ld. counsel for accused Mohd. Wasim argued that the PW1 stated in her examination in chief that "I cannot remember the faces of the person, who had SC No.47/2014 State Vs. Bal Kishan etc 58/77 raped me." This version of the prosecutrix completely makes the prosecution case weak. Ld. counsel further submitted that nothing has been recovered from or at the instance of the applicant/accused. The SIM Card, alleged to be the part of commission of offence, do not belong to the accused. Ld. counsel for accused further submitted that so far as recovery of "Towel" allegedly used in commission of offence, do not belong to the accused Wasim.
193. Sh. A.K. Bhardwaj, Ld. counsel for accused Sunny argued that prosecutrix states that she came from the Nepal and going to Jalandhar, Punjab to meet her sister but prosecution did not examine or cited as witness of prosecution, thus the story of the prosecution is false is conceited which can not be relied upon. Even prosecutrix has alleged that she brought a ticket of Jalandhar but no such ticket has been placed on record.
PERUSAL OF RECORD:
194. Record perused. On perusal of record, it is revealed that on the statement of prosecutrix Ex.PW1/A, present FIR Ex.PW9/A was registered.
195. It is further revealed that prosecutrix was got medically examined by Dr. Kiran vide MLC Ex.PW11/A and Dr. Kiran also collected exhibits pertaining to the prosecutrix, PW1 and handed over the same to the police. Prosecutrix also given brief account of incident to the doctor who conducted her medical examination that she was subjected to sexual assaulted by multiple persons including accused namely Raghau from the evening of 24.04.2014 till around 10:00 a.m. on 25.04.2014 nearby Old Delhi Railway Station.
SC No.47/2014 State Vs. Bal Kishan etc 59/77196. It is further revealed that HC Mahipal had produced the copy of relevant entries of register no. 19, Ex.PW12/A, Ex.PW12/B and Ex.PW12/C having endorsement at different points regarding deposit of exhibits at FSL and releasing of car on supardari and when exhibits were received back after their examination from FSL.
197. It is further revealed that PW12 HC Mahipal also produced copy of the RCs Ex.PW12/D1 to Ex.PW12/D8 through which the exhibits were sent to the FSL and copy of acknowledgements are Ex.PW12/E, Ex.PW12/F and Ex.PW12/G qua the receipt of said exhibits.
198. It is further revealed that PW13 SI Mohit Kumar inspected the spot i.e. a room near Ayurvedic Aushdhalaya, Sanitary Depot, Yamuna Bazar, Kashmere Gate, Delhi and prepared his report Ex.PW13/A; PW18 Ct. Sudesh Kumar, Photographer had taken 11 photographs from the scene of crime, Ex.PW1/P1 to Ex.PW1/P4, Ex.PW13/DA to Ex.PW13/DD and Ex.PW18/A to Ex.PW18/C; PW18 Ct. Sudesh Kumar also produced their negatives Ex.PW18/D1 to Ex.PW18/D11.
199. It is further revealed that PW14 SI Nagender Giri also inspected the scene of crime at Phool Mandi, Rajindra Market, Rain Basera, Mori Gate, Delhi and prepared his inspection report Ex.PW14/A; PW21 Ct. Inderjeet, Photographer of Crime Team also taken three photographs, Ex.PW21/P1 to Ex.PW21/P23; PW21 Ct. Inderjeet also gave negatives of said photographs Ex.PW21/P4.
200. It is further revealed that PW15 Sh. Vishal Gaurav, Nodal Officer proved the SC No.47/2014 State Vs. Bal Kishan etc 60/77 CDR Ex.PW15/A and Ex.PW15/B qua mobile phone numbers 8130644931 and 8527194719 subscribed in the name of Yogesh Jain and Ayush Services and Consultancy respectively; PW15 also produced the customer application form alongwith the ID proof Ex.PW15/C and Ex.PW15/D respectively qua the said mobile numbers.
201. It is further revealed that PW15 Sh. Vishal Gaurav proved the cell ID chart Ex.PW15/E; he also gave certificate under section 65 B of Evidence Act, Ex.PW15/F; PW15 Sh. Vishal Gaurav also proved the CDR of the aforesaid mobile numbers for the period from 15.02.2014 to 06.04.2014, Ex.PW15/G and cell ID chart Ex.PW15/H and also gave certificate Ex.PW15/I under section 65 B of Evidence Act qua the said CDR.
202. It is further revealed that PW16 Sh. Anuj Bhatia has also proved CDR Ex.PW16/A of mobile number 8586880171 subscribed in the name of Mitrasen.PW16 Sh. Anuj Bhatia also produced customer application form alongwith proof of ID, Ex.PW16/B and he also gave certificate u/s 65 B of Evidence Act, Ex.PW16/C qua the said CDR.
203. It is further revealed that PW17 Sh. Joginder had also identified his signature on the relevant entry dated 27.04.2014 in the duty register Ex.PW6/B.
204. It is further revealed that PW19 Ct. Harish carried the exhibits of this case vide RC No.52/21/14 to FSL, Rohini and deposited them at FSL, Rohini against an acknowledgement.
SC No.47/2014 State Vs. Bal Kishan etc 61/77205. It is further revealed that Mohd. Wasim @ Sahil was arrested vide arrest memo Ex.PW22/A, his personal search was conducted vide personal search memo Ex.PW22/B and his disclosure statement was recorded vide Ex.PW32/V. He was medically examined vide MLC Ex.PW22/C.
206. It is further revealed that Dr. Solomi has conducted the medical examination of the prosecutrix, PW1 vide MLC Ex.PW11/A and also gave her report Ex.PW23/A.
207. It is further revealed that IO PW32 W/SI Meena Yadav also taken into possession the exhibits pertaining to the prosecutrixPW1 including her undergarments i.e. brassier Ex.PW32/P1, one black colour underwear Ex.PW32/P2, lady shirt Ex.PW32/P3 and lady pant Ex.PW32/P4 vide seizure memo Ex.PW32/B; IO PW32 W/SI Meena Yadav also prepared site plan Ex.PW1/C at the instance of the prosecutrixPW1.
208. It is further revealed that IO had seized the attendance register Ex.PW6/B vide seizure memo Ex.PW6/A.
209. It is further revealed that accused Rahul @ Raghu was arrested vide arrest memo Ex.PW29/A, his personal search was conducted vide personal search memo Ex.PW25/A and his disclosure statement was recorded vide Ex.PW25/B. He was medically examined vide MLC Ex.PW22/C.
210. It is further revealed that accused Bal Kishan and accused Rahul @ Raghu led the police party at Phool Mandi, Mori Gate and pointed out second place of SC No.47/2014 State Vs. Bal Kishan etc 62/77 incident vide memo Ex.PW32/B; he also pointed out the first place of incident i.e. a room near Ayurvedic Ayushdhayla, Sanitary Depot, Yamuna Bazar, Delhi vide memo Ex.PW32/C pursuant to his disclosure statement.
211. It is further revealed that at the time of arrest of accused Rahul @ Raghu one Nokia mobile phone Ex.PW29/P1 without SIM, his ID of Primus Solutions Enterprises, Ex.PW29/P3 and three Nepali currency notes Ex.PW29/P1 were recovered from his possession vide seizure memo Ex.PW29/B.
212. It is further revealed that accused Sunny was arrested vide arrest memo Ex.PW29/C, his personal search was conducted vide personal search memo Ex.PW25/C and his disclosure statement was recorded vide Ex.PW25/D.
213. It is further revealed that accused Aman @ Sonu was arrested vide arrest memo Ex.PW29/E and his personal search was conducted vide personal search memo Ex.PW25/F.
214. It is further revealed that accused Bal Kishan was arrested vide arrest memo Ex.PW29/F, his personal search was conducted vide personal search memo Ex.PW32/D and his disclosure statement was recorded vide Ex.PW32/E.
215. It is further revealed that pursuant to his disclosure statement accused Aman pointed out the car shown in the photographs Ex.PW1/P1 to Ex.PW1/P4 and IO PW32 W/SI Meena Yadav seized the same vide seizure memo Ex.PW32/F. SC No.47/2014 State Vs. Bal Kishan etc 63/77
216. It is further revealed that accused Sunny also pointed out place of incident i.e. a room at Sanitary Depot vide memo Ex.PW32/G and accused Aman also pointed out place of incident i.e. a room at Sanitary Depot vide memo Ex.PW32/I.
217. It is further revealed that accused Bal Kishan pointed out second place of incident i.e. Phool Mandi, Mori Gate vide memo Ex.PW32/J.
218. It is further revealed that I.O. had got conducted forensic medical examination of accused Sunny and Aman @ Sonu vide MLCs Ex.PW32/L, Ex.PW32/M and Ex.PW32/O, Ex.PW32/P and Ex.PW32/Q, Ex.PW32/R.
219. It is further revealed that Dr. Khushboo assisted PW24 Ms. Ambika Singh, Ld. MM in recording the statement of prosecutrixPW1 under section 164 Cr.PC; PW20 Dr. Khushboo also gave her certificate Ex.PW20/A in this regard; PW24 Ms. Ambika Singh, Ld. MM also gave her certificate Ex.PW24/A regarding correctness of the statement of the prosecutrix, PW1.
220. It is further revealed that statement of prosecutrix u/s 164 Cr. P.C. was recorded vide Ex.PW1/B and it was also videographed and a CD Ex.PW5/B was prepared in this regard.
221. It is further revealed that all the accused persons have refused to join the TIP proceedings.
SC No.47/2014 State Vs. Bal Kishan etc 64/77222. It is further revealed that IO PW32 W/SI Meena Yadav seized CCTV footage of Old Delhi Railway Station in a CD Ex.PW30/P1 from PW30 RPF Constable Harbhajan Singh vide seizure memo Ex.PW25/G which was prepared by PW25 Ct. Amit as he was also present at that time; PW30 RPF Constable Harbhajan Singh had also given certificate Ex.PW30/A u/s 65 of Evidence Act qua said CCTV footage contained in the said CD.
223. It is further revealed that CD Ex.PW30/P1 was played in the laptop in the court and PW30 Harbhajan Singh, RPF Constable correctly identified the CCTV footage contained therein from 02.40 pm to 03.20 pm recorded by camera no.130 on 24.04.2014.
224. It is further revealed that during the course of investigation, IO had taken into possession two bed sheets PW29/P6, one met PW29/P7 and one towel/Gamchha Ex.PW29/P5 vide seizure memo Ex.PW29/G.
225. It is further revealed that Dr. V. Shankar Narayan examined the exhibits pertaining to this case and gave his DNA report Ex.PW33/A wherein he opined that the DNA profiling performed on source exhibit i.e. towel Ex.PW29/P5 was found similar to DNA profile generated from the gauge cloth of your coaccused Aman @ Sonu i.e. exhibit 15; the said report was forwarded to the SHO vide forwarding letter Ex.PW33/B.
226. It is further revealed that Dr. Vijay Kumar had conducted forensic medical examination of accused Mohd. Wasim @ Sahil vide MLC Ex.PW35/A; PW35 Dr. Varun Garg had identified the signature and writing of Dr. Vijay SC No.47/2014 State Vs. Bal Kishan etc 65/77 Kumar on the said MLC.
227. It is further revealed that Dr. Sugandha had conducted forensic medical examination of accused Rahul @ Raghu and Aman @ Sonu vide MLC Ex.PW32/M and Ex.PW32/O respectively; PW36 Dr. Mahima had identified the signature and writing of Dr. Sugandha on the said MLCs.
228. It is further revealed that Dr. Deepak Thapa had conducted forensic medical examination of accused Bal Kishan and also that of accused Sunny vide MLCs Ex.PW32/K and Ex.PW32/Q respectively; PW37 Dr. Megha Aggarwal had identified the signature and writing of Dr. Deepak Thapa on the said MLCs.
229. It is further revealed that PW39 Ct. Bhopal Singh, DD Writer recorded DD no.5PP vide Ex.PW39/A.
230. It is further revealed that PW28 Dr. Prashant Goel, Consultant Psychiatrist examined the prosecutrixPW1 in Naari Niketan at Nirmal Chhaya Complex and found that she was laughing excessively, singing songs, showing abusing and aggressive behaviour and she also had history decreased sleep.
231. It is further revealed that Dr. Prashant Goel again examined the prosecutrix PW1 and found that she was not compliant to medication prescribed to her and when he found prosecutrixPW1 to be unmanageable at Naari Niketan Nirmal Chhaya, her referred her to IHBAS for further management vide his report Ex.PW28/A (colly.).
SC No.47/2014 State Vs. Bal Kishan etc 66/77FINDINGS:
232. Before reaching to any conclusion, let the relevant sections i.e. 376D/376(2)
(n)/366/34 IPC be reproduced, which are as under : Section 376D. Gang Rape: Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.
Section 376 (2)(n) IPC:
(2) Whoever, commits rape repeatedly on the same woman.
shall be punished with rigorous imprisonment for term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid).
233. I have heard both the parties and perused the record.
234. Though, case of prosecution is consist of two incidents but happened SC No.47/2014 State Vs. Bal Kishan etc 67/77 during the same transaction. The first incident is regarding gang rape committed on the prosecutrix in a room at Sanitary Depot, Near Ayurvedic Ayushdhayla, Yamuna Bazar, Delhi. Second incident, again of gang rape, committed on the prosecutrix has occurred at Subzi Mandi, Phool Mandi, Near Rain Basera, Near Kucha Mohtar Khan, Mori Gate, Delhi.
235. The accused Bal Kishan @ Karwaya, Sunny, Rahul @ Raghu and Aman @ Sonu have been subjected to trial qua the first incident of gang rape occured at the said place. They all are alleged to have abducted the prosecutrix in furtherance of their common intention for compelling her to have illicit intercourse against her will and without her consent and further subject her to gang rape. Accused Rahul has committed rape on the prosecutrix during the course of both the said incidents.
236. For the offence of gang rape, it is imperative on the part of prosecution to prove that all the accused persons or anyone of them constituting a group or in furtherance of their common intention committed rape on the prosecutrix.
237. In this case there are overwhelming evidence to prove that all the aforesaid accused persons belong to a same group of persons and have committed gang rape on prosecutrix during the course of aforesaid two incidents. As such, their identity also gets established from the evidence proving the fact that they all belong to the same group of persons and have been together at the time of incidents.
SC No.47/2014 State Vs. Bal Kishan etc 68/77238. PW30 Ct. Harbhajan who used to manage the affair of camera installed at the Delhi Railway Station on relevant date and time, converted the relevant CCTV footage into CD Ex.PW30/P1 and handover the same to the police. He has also given certificate under section 65B of Evidence Act qua the said CD Ex.PW30/A. The said CD was played in the court and it was found to have contained the recording from 2:40 p.m. to 3:20 p.m. on 24.04.2014 wherein accused Rahul, Bal Kishan @ Karwaya and Sunny are seen taking the prosecutrix outside the railway station. The said evidence being an electronic evidence, duly proved in term of relevant provision of law, clearly establish the presence of the aforesaid three accused persons together taking the prosecutrix outside the railway station preceding the incident.
239. PW10 Sh. Ankit has testified that about 3 months prior to date of incident, another coaccused of this case, a juvenile, resident of Garhwal, approached him through his office friend Sh. Om Prakash and requested him to permit him to live in the store room belonging to MCD but being used by PW10, stating that he has no place to live as he had come from Garhwal. PW10 allowed the juvenile to use the said room, for some days. It is further testified by PW10 that two friend, namely accused Sunny and Aman of the said juvenile also used to visit the said room. PW10 has correctly identified both the said two accused persons in the court.
240. PW10 later also came to know from the police that incident of rape had taken place in said room. As such, from the testimony of PW10, it gets proved that the aforesaid accused persons namely Rahul, Bal Kishan, SC No.47/2014 State Vs. Bal Kishan etc 69/77 Sunny, Aman and juvenile were known to each other. Apart from the said evidence, there is also a evidence to prove that they were not only known to each other but they have also been working together with Primus Solution Enterprises and were deployed at ODRS for cleaning purposes at relevant time & date.
241. PW17 Sh. Joginder @ Guddu who was also engaged for doing the work of cleaning at Old Delhi Railway Station being attached with Primus Company for the last eight years also testified that when police approached him to make enquiry regarding a mobile number and he after seeing that mobile number i.e. 8130644931 revealed to the police that it belonged to accused Rahul @ Raghu who was also attached with the Primus Company and was assigned the work of cleaning at Old Delhi Railway Station. PW17 further testified that thereafter, police had also made necessary enquiry from his Supervisor Sh. Krishan. PW17 has further testified that accused Rahul @ Raghu was arrested from outside the Old Delhi Railway Station at his instance. PW17 has further testified that accused Sunny, Bal Kishan and Mohd. Wasim @ Sahil were known to him as they were also working with the Primus Company along with him.
242. The aforesaid evidence adduced by prosecution categorically establish that all the accused persons were not only known to each other even prior to the incidents but they had also been working together. Therefore, the issue of their identity has to be seen keeping in mind the aforesaid evidence as they are facing charge of gang rape.
SC No.47/2014 State Vs. Bal Kishan etc 70/77243. The first arrest made by the police was that of accused Rahul on the very next date of incident from Old Delhi Railway Station at the instance of PW17. Though, contrary to the aforesaid facts leading arrest of Rahul @ Raghu, the prosecutrix has stated in her testimony that accused Rahul @ Raghu was arrested at her instance from Old Delhi Railway Station. The said contradictions or improvement made by prosecutrix does not effect the case of prosecution, because prosecutrix had already named the accused Rahul in the FIR. He was the only person who was named by the prosecutrix in the FIR. She has also correctly identified him in the court during the trial along with other accused persons.
244. Pursuant to his disclosure statement Ex.PW25/B accused Rahul @ Raghu also pointed out both the places of incidents as he had committed rape on the prosecutrix during both the incident.
245. The pointing out of place of incident by accused Rahul @ Raghu also constitute an admissible evidence against him u/s 8 of Evidence Act. It is relevant to mention that at the time of arrest of accused Rahul @ Raghu, a Nokia Mobile phone bearing IMEI No.358615044057241 without sim, his I.D. of Primus Solution Enterprises were also recovered which also establish his associates with the company. It was the same mobile instrument which he had used for using mobile No.8130644931.
246. Further, pursuant to his disclosure statement accused Rahul @ Raghu also lead the police party to the house of accused Sunny and got him arrested and thereafter, he along with accused Sunny also got accused Aman SC No.47/2014 State Vs. Bal Kishan etc 71/77 arrested from his house. Thereafter, accused Aman and Sunny also got co accused a juvenile arrested, in this case. Accused Sunny and Rahul @ Raghu also got arrested accused Bal Kishan at their instance pursuant to their disclosure statement.
247. Before the arrest of accused Rahul, investigation agency was not aware about details and whereabouts of aforesaid other coaccused persons and it was the information disclosed by accused Rahul @ Raghu in his disclosure statement, which led the arrest of other aforesaid accused persons. The said information comes within the perview of section 27 of Indian Evidence Act and constitute a legally admissible evidence.
248. Hon'ble Supreme Court in case "Mehboob Ali Vs. State of Rajasthan, 2015 AIR SCW 6123" has held that :
"20. Considering the aforesaid dictums, it is apparent that there was discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. Coaccused was nabbed on the basis of identification made by the accused Mehboob and Firoz. He was dealing with fake currency notes came to knowledge of police through them. Recovery of forged currency notes was also made from Anju Ali. Thus the aforesaid accused had the knowledge about coaccused Anju Ali who was nabbed at their instance and on the basis of their identification. These facts were not to the knowledge of the police hence the statements of the accused persons leading to discovery of fact are clearly admissible as per the provisions contained in section 27 of the Evidence Act which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in sections 25 and 26 of the Evidence Act. "
249. On 22.05.2014, accused Wasim @ Sahil was also arrested and he was produced before the concerned court next day in muffled face. On the SC No.47/2014 State Vs. Bal Kishan etc 72/77 same day, PW33 SI Meena Yadav moved an application for his TIP but accused Wasim had refused to join TIP proceedings. On the next date i.e. on 24.05.2015, PW32 W/SI Meena Yadav also moved an application for conducting TIP of accused Rahul @ Raghu, Sunny, Aman @ Sonu and Bal Kishan. The matter was posted for 27.05.2014 and on that day all the said accused persons refused to join their respective TIP proceedings.
250. It is pertinent to mention that after refusal of accused persons to join their TIP proceedings, I.O. in order to be sure, showed the photographs of the accused persons to the prosecutrix, who after seeing the photographs identified all the accused persons to be preprators of the crime. The said photographs of the accused persons were taken for preparation of their dossiers. Arguments on behalf of the accused persons that police had taken their photographs at the PS and showed them to the prosecutrix in order to establish their identity does not hold water. The said photographs were shown to the prosecutrix after refusal of the accused persons to join their respective TIP proceedings.
251. Coming to the dock identification of the accused persons, prosecutrix has identified all of them in the court. Though, prosecutrix stated that she does not remember the faces of the persons, who had raped her as three months time had passed after the incident but she stated that she can identify accused Rahul @ Raghu after seeing his hand where "Raghu" was tattooed. Thereafter, after seeing of accused persons in the court, prosecutrix had identified accused Raghu after seeing his hand on which the name "Raghu" was tattooed. Thereafter, prosecutrix stated that she cannot identify any SC No.47/2014 State Vs. Bal Kishan etc 73/77 other accused persons, however, after looking at the accused persons for sometime in the court again, prosecutrix identified all of them to be the persons who had raped her.
252. The aforesaid manner of identification of the accused persons in the court by prosecutrix if seen in the light of evidence that they belong to same group of persons, being known to each other even prior to the incident and they had also been working together it stand proved that all the accused persons constituting a group and in furtherance of their common intention abducted the prosecutrix and subjected her to gang rape.
253. More so, the CCTV footage showing accused persons namely Bal Kishan @ Karvaya, Rahul @ Raghu and Sunny taking the prosecutrix outside the railway station, identification of accused Rahul @ Raghu, Sunny, Wasim @ Sahil and Bal Kishan @ Karvaya by PW17 Joginder and the evidence that they have been working together with the Primus Solution Enterprises and were deputed at railway station for cleaning purpose and the evidence of PW10 Ankit to the fact that Sunny and Aman used to visit at the house of juvenile at the said MCD store room which was given to him by PW10 coupled with the evidence that accused Rahul @ Raghu and Wasim @ Sahil have been together at second place of incident i.e. Phool Mandi at relevant date and time and the recovery of nokia mobile phone from the possession of accused Rahul @ Raghu which he used to make call on mobile phone number given by the prosecutrix for seeking help go a long way to establish not only involvement of accused persons in the commission of present offence but also establish their identity beyond SC No.47/2014 State Vs. Bal Kishan etc 74/77 reasonable doubt.
254. Apart from the evidence discussed hereinabove one of the another crucial evidence in the case is recovery of gamcha (towel) from the store room i.e. second place of incident. More importantly the said gamcha was sent to FSL for DNA analysis and it was opined that "DNA profiling was performed on the source exhibits 4 i.e. towel (Gamcha) found sufficient to conclude that they were similar to the DNA profile generated from the source of exhibit 15 i.e. gauze cloth piece of accused Aman.
255. The positive DNA report of accused Aman, if seen in the light of the evidence which establish that all the accused persons belong to same group of persons known to each other even prior to the incidents, their identification by the prosecutrix in the court, further strengthen the case of prosecution to bring home the guilt of accused persons in this case.
256. Further analysis of CDR of mobile number 8130644931 being used by Rahul @ Raghu and mobile No. 8527194719 of accused Wasim @ Sahil duly proved on record clearly establish that on the day of incident they had talked each other and their location was also found near second place of incident which is also an additional circumstance in the case of prosecution against the accused persons.
257. The recovery of Hundai Car bearing registration No. DL3CAA3297 at the instance of accused Aman from the first place of incident further corroborate and strengthen the case of prosecution that the coaccused SC No.47/2014 State Vs. Bal Kishan etc 75/77 Rahul @ Raghu had called the Aman with the said car and he along with Aman, Bal Kishan @ Karwaya and Sunny had taken the prosecutrix at first place of incident and committed gang rape on her.
258. I have meticulously and carefully gone through the statement of prosecutrix forming basis of FIR, her statement recorded u/s 164 Cr.P.C., her testimony before the court, alleged history given by her as mentioned in her MLC before the doctor who conducted her medical examination. I have also watched the CD containing statement of prosecutrix recorded u/s 164 Cr.P.C. at IHBAS during her treatment. The version given by prosecutrix in aforesaid document and CD are consistent, coherent, credible and trustworthy and inspire confidence.
259. It is settled proposition of law that the sole testimony of prosecutrix if found reliable, credible, trustworthy and inspire confidence, the same can be the sole basis for bringing home the guilty of the accused but in this case apart from the testimony of prosecutrix there are overwhelming evidence which corroborate her testimony as described above. As such the evidence brought on record by prosecution, facts and circumstances narrated by the prosecutrix, her testimony before the court, recovery of incriminating articles at the instance of accused persons coupled with their identification in the court by the prosecutrix and the evidence proving the facts that they belong to same group of person and that they had been working together, their consecutive arrest on after another pursuant to the disclosure statement of accused Rahul @ Raghu and they have been together at the time of incident, their location established by way of CDR of mobile SC No.47/2014 State Vs. Bal Kishan etc 76/77 phone, positive DNA report of accused Aman unerringly proved that they are the person who have committed the offence for which they have been charged.
260. As such accused persons namely Bal Kishan @ Karvaya, Sunny, Rahul @ Raghu and Aman @ Sonu are held guilty of offence punishable u/s 366/34 and 376D IPC, accused persons namely Bal Kishan @ Karvaya and Rahul @ Raghu are also held guilty for offence punishable u/s 376 (2) (n) IPC and accused Mohd. Wasim @ Sahil is held guilty for offence punishable under section 376D IPC.
261. File be consigned to record room.
PRONOUNCED IN THE OPEN COURT ON 21.09.2017.
(RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.47/2014 State Vs. Bal Kishan etc 77/77