Delhi District Court
State vs 1] Deepak on 1 November, 2014
In the Court of Ms. Kaveri Baweja
Additional Sessions Judge Special FTC - 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 57/2013
Unique ID No. : 02401R0109742013
State versus 1] Deepak
S/o Sh. Ajab Singh
R/o H. No. 43, Gali No. 1, Village
Jagatpur, Delhi
2] Praveen @ Lallu
S/o Sh. Ashok
R/o Gali No. 4, Village Jagatpur,
Delhi
3] Vikas @ Vicky
S/o Sh. Jai Singh
R/o Gali No. 4, Village Jagatpur,
Delhi
4] Ashok Ekka
S/o Sh. Edmond Ekka
R/o Gali No. 9, near Pusta,
Village Wazirabad, Delhi
Case arising out of:
FIR No. : 267/2012
Police Station : Timarpur
Under Section : 376(2)(g)/365/392/411/34 IPC
Judgment reserved on : 13.10.2014
Judgment pronounced on : 01.11.2014
JUDGMENT
CASE OF THE PROSECUTION:
1. Stating briefly, the facts of the case as borne out from the chargesheet are that on 03.12.2012, upon receipt of DD No. 69B by SI Vikram Dahiya, SI Veena Kumari alongwith Ct. Ritika reached at Aruna Asaf Ali Hospital where they found Complainant/Prosecutrix 'SJ' [name withheld to protect the identity]. She was examined vide MLC No. 2692/12 dated 03.12.2012. In the meantime, Ct. Subhkaran also reached at hospital. In her MLC Complainant has alleged sexual and physical assault by some unknown person on 01.12.2012 at around 7 PM. She also made written complaint to this effect wherein she stated that she is refugee from Rwanda and her refugee No. is 12C00961. She came to India in July 2012 and shifted from Malviya Nagar to Wazirabad in September, 2012 and she is presently residing at Wazirabad.
2. Complainant alleged that on 01.12.2012, as she was walking towards Gandhi Vihar around 7 PM, one unknown lady called her by her name. She turned and saw. That unknown lady started talking to her in her language and suddenly pushed her inside the car. She alleged that three people, who looked Indians, were already inside the car. They caught her from behind and closed her mouth and nose. She alleged that she could hear somebody saying "Here she is, you can do whatever you want." Complainant stated that her head was spinning and then she could feel that those people were trying to harass and molest her in her private parts. She alleged that they hit her on her eyes, chest and beat her brutally in all parts of her body. The sexually assaulted her and raped her. She became half conscious and when she realised, she found herself at the bank of Yamuna River. She was naked and bleeding. She stated that one person on motorbike came and helped her in wearing her clothes, but she does not know him. She stated that she can recognize the lady who called her in the car, if she comes in front of her and could also recall the car number which she gave to the police on the same night i.e. UP16AE222. She stated that said unknown person on bike, dropped her to her home and she does not know where he went after that. Thereafter, one boy namely Mohd. Babu, who is residing at third floor of the building where she is residing, saw her sitting downstairs and crying. He came for her help and she asked him to take her to Police Station. After reaching the Police Station, she informed the police about the incident and police took her to the place of incident.
She stated that she wanted to go to hospital as she was having pain and bleeding but she was not taken there.
3. Finally, she came back to the PS but they did not lodge a complaint. She kept crying in pain. Then she came back home. On next day, she wanted to go to hospital but she was informed that hospital emergency would be closed. DBA was also closed. On 03.12.2012, her friend went to Don Bosco to seek help for her. Then she was brought to Aruna Asaf Ali Hospital where she was medically examined. Sexual assault kit, outer and inner clothing of Prosecutrix and sample seal was handed over to the police. Investigation was handed over to ASI Santosh Sirohi. ASI Sanotosh Sirohi, SI Veena Kumari and Ct. Subhkaran reached at Aruna Asaf Ali Hospital. On the pointing out of Prosecutrix, site plan of Gandhi Vihar from where Prosecutrix was kidnapped and site plan of Shyam Ghat where rape was committed upon her was prepared. ASI Santosh Sirohi seized the clothes i.e. shirt and pant worn by Prosecutrix at the time of incident and deposited the same in malkhana. Statement of witnesses were recorded. In her supplementary statement, Prosecutrix stated that her rufugee card No. 12C00961 and her black colour purse containing one Aircel SIM No 8802501009 and some passport size photographs, Nail polish, black colour comb, one coin Shilling of Kenya and some visiting cards were snatched by those boys after giving her beatings. She alleged that one more boy joined those three boys near the river and he also raped her. Thereafter, further investigation was assigned to SI Suman.
4. During investigation, SI Suman investigated regarding the car bearing registration No. UP16AE222 from Noida Authority. During investigation, the name of owner of car bearing registration No. UP16AE8222 Santro was found to be of Rajni D/o Rajpal R/o Village Kharpur, District Gautam Buddha Nagar, UP. She was interrogated. She disclosed that she got married to one Deepak S/o Ajab Singh and the said car was given to her by her father in dowry and the same is in possession of his husband Deepak. During investigation, on the pointing out of secret informer, on 06.12.2012 at about 5.30 PM at Hanuman Chowk, Wazirabad, Delhi stopped a car coming from the side of Ram Ghat which was driven by Deepak S/o Ajab Singh. Accused Praveen was sitting adjacent to Accused Deepak. Accused Deepak was interrogated and arrested. Personal search of Accused was also got conducted in which one mobile make Nokia 305 IMEI No. 3536730577964658, 353673057796473, one Aircel SIM No. 899110101202277129799H2 were recovered. Disclosure statement of Accused Deepak was recorded. On the pointing out of Accused Deepak, SI Suman seized one Vodafone SIM bearing No. 84404589613HLR3 from car bearing No. UP16AE 8222.
5. Crime Team was called at the spot and the recovered car was inspected. During inspection, some hair strands were recovered from foot mat of back seat of car. The same were seized by the police. Thereafter, Accused Praveen @ Leelu was arrested and his disclosure statement was recorded. Accused Praveen got recovered a black colour ladies purse from an almirah of his house stating that said purse belongs to Prosecutrix. The same was seized by the police.
6. Thereafter, Accused Ashok@ Ekka was arrested. His personal search was conducted and disclosure statement was recorded. He got recovered one mobile phone make Nokia having IMEI No. 353791047899320 without SIM from almirah of his house.
7. Disclosure statement of Accused Vikas was recorded. He got recovered one SIM No. 8802501009, five passport size photographs, one Aircel SIM having IMEI No. 899918000712142829503, two Rs 60/ each Vodafone voucher, copy of letter of UNHCR refugee No. HCR/PL/305/12C00961 of Prosecutrix, one black comb, one nail filer and seven visiting cards. The same were seized by the police.
8. On the pointing out of Accused Vikas, site plan was prepared. On the next day, Accused Vikas got recovered Rs. 900/ from his house. All the four Accused persons were got medically examined. Sealed exhibits were seized by the police. SI Suman took scalp hair of Prosecutrix to match DNA of the same with the hair strands recovered from car and got it preseved in Aruna Asaf Ali Hospital. All the pullandas were sent to FSL.
9. On 14.12.2012 Prosecutrix identified her purse and comb during Test Identification Proceedings of case property, which was recovered from Accused persons. All four Accused were produced in court in muffled face but they refused to participate in TIP proceedings. During investigation, certified CDR of robbed mobile SIM No. 8377949436 was obtained wherein the position of mobile phone of Prosecutrix before kidnapping on 01.12.2012 at 8 PM was of Gandhi Vihar and after committing rape, the position of mobile phone was of Wazirabad near Hanuman Chowk.
10. CDR of Aircel SIM having IMEI No. 89918000712142829503 and SIM No 8802501009 recovered from Accused Vikas, was obtained which was in the name of one Pradeep Sehrawat, who told that he had given the said SIM to his brother Rakesh, who further gave the same to his friend i.e. Prosecutrix in this case. It is further the case of the Prosecution that CDRs of the aforesaid recovered mobile phones show presence of Accused persons and Prosecutrix near the place of incident. Chargesheet was submitted in court after completion of investigation.
CHARGES:
11. After committal of case, on the basis of material on record, all Accused were charged for offence under Section 366/392/34 IPC and 376(2) (g) IPC. Further, Accused Ashok, Vikas and Praveen were charged for offence under Section 411 CrPC. All Accused pleaded not guilty and claimed trial when the charges were read over and explained to them. PROSECUTION EVIDENCE:
12. In order to bring home the guilt of Accused persons, Prosecution examined as many as twenty eight [28] witnesses on record. Public Witnesses:
13. PW1 Prosecutrix 'SJ' deposed that she is a refugee from Rwanda and her refugee no. is 12C00961 and she came to India in July, 2012 and shifted to Wazirabad in September 2012 from Malviya Nagar where she was earlier residing also.
14. On 01.12.2012 she was going to Gandhi Vihar Side at about 67.00pm on foot. There was a small road where she used to go for marketing. As she was walking, one girl who was black like her and she called her by her nick name. One person was standing with her, she said 'Hi' to her. When she walked to her to shake hands with her, somebody came from her behind and pushed her inside the car. That girl said "take her and do whatever you want and see that she is killed." One person was on driver seat and one person was sitting besides him in the car and the one person who pushed her in the car joined them. She further stated that One more person who was standing near the girl also joined them in the car and there were four persons inside the car. The car started moving, they pressed her mouth with their handkerchief and thereafter her head started spinning but she could make out that those persons were giving her beatings and all the four persons forcibly established physical relations with her many times against her wishes and they also forced her to have unnatural sex with them like sucking private parts. She was left at the bank of river by them in a very bad condition and she also found that she was bleeding from her private parts.
15. PW1 Prosecutrix 'SJ' further deposed that when she regained her senses, she found herself on a motorbike and someone dropped her near her house. The person who dropped her wrote something on her hand and later on she found that it was the registration number of the car which she had shown in the Police Station and also noted down herself on a separate piece of paper. The number of the car was UP16AE222 . At that time, she was not wearing her undergarments. She also deposed that though she was breathing, she found her whole body in great pain. She was not having her mobile, her purse and one shoe and she was lying outside her house as her brothers were not there. The purse of Prosecutrix was containing her passport size photographs, xrox copy of the passport , photocopy of UN I/D card , metro card, black colour comb , some visiting cards, cash of Rs.1300/ and 20 Shilings of Kenya and one Aircel SIM Card , the number of which she does not remember now. The number of her mobile which she was carrying at the time of incident was 8377949436.
16. One neighbourer who lives upstairs noticed her and she asked him about the nearest police station and he took me to Police station. The police did not write her complaint . She begged them to take her to nearby police hospital but they did not take her there. They asked her to show the place of incident. She took them to the place of incident but they did not believe her and she was not taken to hospital and informed her that it would be closed being Saturday / Sunday.
17. Her brother approached the NGO Don Bosco which works for refugee and with their help she was taken to Aruna Asaf Ali Hospital for her medical examination. Lawyer from Socio Legal Information Center (SLIC) also reached the hospital and Police came to the hospital and she was taken to Civil Line and there her statement was recorded which is Ex.PW1/A.
18. Though PW1 stated that she can identify the offenders on seeing them, but on seeing the Accused in court, she deposed that she is not certain whether all the four Accused present in the court are the same persons who had committed rape upon her or not, as it was dark at that time and also because she was semiconscious when one of the offenders had placed a handkerchief on her mouth.
19. PW1 Prosecutrix further deposed that as far as she remembers one of the boys was about 18 years of age and rests were of about 20 years of age and one of them was wearing earring.
20. The clothes i.e. TShirt and Skyblue colour Jeans, which she was wearing at the time of the incident were seized by the police from her house during the investigation and the clothes vide seizure memo Ex. PW1/B. During the investigation, she had shown the place to the police from where she was kidnapped. Statement of Prosecutrix was recorded under Section 164 CrPC by Ld. Magistrate. The same is Ex. PW1/C.
21. PW3 Babu deposed that he does the work of repairing of air conditioners and lives on the third floor of the house at Wazirabad where Prosecutrix was living on the second floor with her brothers.
22. PW3 further deposed that on 01.12.2012 between 911 PM. However, he does not remember the exact time, Prosecutrix was weeping in the gali in front of her flat. He asked her about the matter. She told him in broken Hindi language that her wallet and mobile has been snatched and asked him for police help. He took her to PS Timarpur and left her there and returned back. Police recorded his statement but does not remember when the same was recorded.
23. PW7 Pradeep Shehrawat deposed that the Aircel SIM No. 8802501009 is in his name and he gave the same to his elder brother Rakesh, who lives in Gandhi Vihar, for using the same. His elder brother told him that he had given the same for use to the brother of a girl who was foreigner and who was his friend.
24. PW9 Rakesh Shehrawat deposed that he was having one Aircel SIM connection bearing No. 8802501009 which he gave to his friend i.e Prosecutrix at her request in the month of October, 2012 as the call chrges for making a call to Africa i.e. her native country were cheaper on Aircel number. This number is in name of his brother Pradeep.
25. PW27 Sumit Kumar deposed that he knows Accused Praveen @ Lalu as he is his friend and also hails from village Jagatpur, Delhi. He correctly identified Accused when produced in court. He got issued a SIM bearing No. 9971775697 on his ID and gave the same for use to Accused Praveen as he was not having any ID proof. Police of PS Timarpur met him and made enquiries from him about the said number and recorded his statement.
Doctors:
26. PW5 Dr. Shikha Aggarwal deposed that on 03.12.2012 she examined Prosecutrix having complaint of photophobia, both eyes. On examination, she found haematoma [swelling in both eyes due to blood deposit on account of injury] in both eyes. She also found congestion [redness] in both eyes. She opined the nature of injuries as 'simple' on MLC already Ex. PW2/A.
27. PW4 Dr. Namrata Saxena deposed that on 03.12.12 she was working as SR Gynae at Aruna Asaf Ali Hospital. On that day, she conducted gynecogical examination of Prosecutrix who was produced by W. Ct. Ritika.
28. As per the history told by patient, she was kidnapped and beaten on Saturday night (1.12.12) at around 7PM. She lost her consciousness. When she regained her consciousness, she found herself at bank of the river without her clothes. According to her, she was physically and sexually assaulted.
29. She gave her consent for detailed medical examination after which doctor examined her vide her detailed report Ex. PW4/A. Upon examining the patient, she observed as under:
(i) Her LMP was on 10 November, 2012.
(ii) Her cycle was regular.
(iii) She was unmarried but she had conceived once around two years back.
According to her baby was died in uterus at 07 months gestation for which LSCS [Lower Segment Cessarian Section] was done.
(iv) After assault, she had taken bath and changed her clothes.
(v) On local examination, no sign of injury was found. A curved transverse scar mark of cessarian section present over mons pubis. There is no matting of pubic hair.
(vi) On per speculum examination, transverse of normal cervix and vagina present. Normal mucoid discharge present.
(vii) On per vaginal examination, uterus was anteverted, normal size and bilateral adnexa were clear.
After examining the patient, doctor collected the samples and handed over the same to the police.
30. PW2 Dr. Solomi deposed that on 03.12.2012 while she was working as CMO at Aruna Asaf Ali Hospital, Prosecutrix was brought to casualty by NGO Staff with the alleged history. The patient was examined by her vide MLC No. 2692/12 Ex. PW2/A. Thereafter, patient was referred to SR Gynae and Obs and SR eye for expert opinion and management.
31. PW17 Dr. Asitesh Bajwa deposed that on 07.12.2012 while he was posted as SR Subzi Mandi Mortuary, Aruna Asaf Ali Hospital, he conducted the potency test of one Praveen @ Lallu. His detailed report is Ex. PW7/A. PW17 voluntary added that inadvertently, he mentioned the word 'deceased' in place of 'person' in his report.
On that day, he also conducted the potency test of one Vikas @ Vikcy. His detailed report in this regard is Ex. PW17/B. Nodal Officers:
32. PW6 Israr Babu, Nodal Officer, Vodafone brought the summoned record i.e. Original Customer Application form and CDR of mobile phone No. 8377949436 in the name of 'SJ' w.e.f 30.11.12 to 03.12.12. As per the customer application form, the abovesaid mobile phone is in the name of 'SJ' and the photocopy of customer application form is Ex. PW6/A and the photocopy of ID proof attached with customer application form is Ex. PW6/B. The CDRs are Ex. PW6/C and certificate under Section 65B Evidence Act is Ex PW6/D, all bear my signatures at point A. [OSR]
33. PW6 also brought the summoned record i.e. Original Customer Application form and CDR of mobile phone No.9899681330 in the name of Vikas w.e.f 30.11.12 to 03.12.12. As per the customer application form, the abovesaid mobile phone is in the name of Vikas and the photocopy of customer application form is Ex. PW6/E and the photocopy of ID proof attached with customer application form is Ex. PW6/F. The CDRs are Ex. PW6/G and certificate under Section 65B Evidence Act is Ex PW6/H. During the investigation, the abovesaid documents were handed over to the IO.
34. PW6 Israr Babu also brought Cell ID Chart of Vodafone of relevant CDRs Ex. PW6/C and Ex. PW6/G. The same is Ex. PW6/J. As per CDR of mobile phone No.8377949436, the location of mobile phone at 19:24 hrs shown at Tower ID No.22252 which is installed at Anoop Singh Tyagi Market, Opposite Gali No.10, Wazirabad, Delhi and at 19:32 hrs at Tower ID No.26323 installed at Gali No.1, BPO, Gopalpur, Mukherjee Nagar and at 19:40 at Tower ID 52383 which is installed at Shiv Shakti Mandir, Village Wazirabad, at 19:59 at 17561 which is installed at Gandhi Vihar and at 20:03 hrs at Tower ID No.26323 installed at Gali No.1, BPO, Gopalpur, Mukherjee Nagar, at 20:08 hrs at Tower ID 62162 at Gandhi Vihar, at 23:48 hrs shown at 22251 at which is installed at Anoop Singh Tyagi Market, Opposite Gali No.10, Wazirabad, Delhi.
35. Normally, every cell tower has three sectors having last number as 1,2 & 3 whereas the remaining numbers of the said cell tower are same. A mobile phone may catch the signal from another nearby tower if its signal is stronger or nearer to the mobile phone than the other tower and overlapping is possible at the end of the range of a tower. He has already proved cell ID Chart Ex. PW6/I. The CDRs Ex. PW6/C and Ex. PW6/G were generated by him from the main server of company connected with his computer. The said computer is only in his control and he has only been authorized by the company to generate the said CDRs. The said CDRs are not tampered with in any manner and he has already given certificate u/s 65 B of Evidence Act to this effect.
36. PW8 Shishir Malhotra deposed that on 01.2.13 he handed over the subscriber information form of mobile phone No. 8802501009 and 8285659336 and CDRs from 20.11.12 to 02.12.12 and 30.11.12 to 02.12.12, certified copies of supporting documents and Cell ID Chart alongwith certificate under Section 65B Evidence Act to the IO vide letter Ex. PW8/A . PW8 also brought the original in the court. Attested photocopy of CAF of mobile phone No. 8802501009 is Ex. PW8/B and the attested photocopy of ID proof is Ex. PW8/C and the attested copy of CDR is Ex. PW8/D. Attested photocopy of CAF of mobile phone No. 8285659336 is Ex. PW8/E and the attested photocopy of ID proof is Ex. PW8/F and the attested copy of CDR is Ex. PW8/G. Attested copy of cell ID chart is Ex. PW8/H and the certificate under Section 65B Evidence Act is Ex. PW8/I. PW8 also proved the original CAF of mobile phone No. 8285659336.
37. PW8 Shishir Malhotra further deposed that as per CDR of mobile phone No. 8285659336 Ex. PW8/G, the location of mobile phone on 01.12.2012 at 18:38:46 hrs shown at Tower ID No. 10411 which is installed at Wazirabad, Delhi and at 18:48:15 hrs at Tower ID No. 32173 installed at Gopalpur Village near Gandhi Vihar and at 19:57:21 hours at Tower ID 10153 which is installed at Gopalpur near Wazirabad, at 21:39:27 at 39883 which is installed at Village Sadatpur and at 21:45 hrs at Tower ID 10411 which is installed at Wazirabad, Delhi. As per CDR of mobile phone No. 8802501009 Ex. PW8/D, the said mobile phone number was only used on 23.11.2012 in different handsets bearing IMEI Nos. 353791047899320, 352834053012380 and 356999011196630
38. Normally every cell tower has three sectors/antenna having last number as 1,2 & 3 whereas the remaining numbers of the said cell tower are same. A mobile phone may catch the signal from another nearby tower if its signal is stronger or nearer to the mobile phone than the other tower and overlapping is possible at the end of the range of a tower. I have already proved cell ID Chart Ex. PW8/H.
39. The CDRs Ex. PW8/D and Ex. PW8/G were generated by him from the main server of company connected with his computer. The said computer is only in my control and he has only been authorized by the company to generate the said CDRs. The said CDRs are not tampered with in any manner and he has already given certificate u/s 65 B of Evidence Act to this effect.
40. PW15 R. K. Singh, Nodal Officer Bharti Airtel brought the summoned record i.e. original customer application form and CDR of mobile No. 99717756971, 9990085609 for period w.e.f. 30.11.12 to 03.12.12. As per, CAF the mobile phone No. 99717756971 is in the name of one Sumit S/o Sh. Inderaj. The photocopy of CAF with customer ID is Ex. PW15/A. The CDRs of mobile No. 99717756971 is Ex. PW15/B [colly]. The said CDRs are generated from the computer of the company and are not tampered with in any manner. As per, CAF the mobile phone No. 9990085609 is in the name of one Deepak Kumar S/o Sh. Ajab Singh. The photocopy of CAF with customer ID with supporting documents is Ex. PW15/C [colly]. The CDRs of mobile No. 9990085609 is Ex. PW15/D [colly]. The said CDRs are generated from the computer of the company and are not tampered with in any manner. PW15 also brought Cell ID Chart related to aforesaid both mobile phone numbers which is Ex. PW15/E. The certificate under Section 65 B Indian Evidence Act regarding the computer generated documents is Ex. PW15/F.
41. PW15 further deposed that in his earlier deposition recorded on 09.01.2014, the mobile number has been inadvertently mentioned as 99717756971 whereas the correct mobile number is 9971775697. As per CDR of mobile phone No. 9990085609 Ex. PW15/D, the location of mobile phone on 01.12.2012 at 18:18 hrs shown at Tower ID No. 15361 which is installed at Wazirabad, Delhi and at 18:34:39 hrs at Tower ID No. 53423 installed at Sadatpur Village and at 19:40:56 and 19:47:30 hours at Tower ID 55701which is installed at Mukherjee Nagar, at 19:49:06 at 46531 which is installed at Gopalpur and at 19:57:52 hrs at Tower ID No. 55701 installed at Mukherjee Nagar, at 20:09:42 hrs at Tower ID 46531 at Gopal Pur, at 20:17:36 hrs shown at Tower ID 55701 at which is installed at Mukherjee Nagar, Delhi, at 20:23:19 hrs shown at Tower ID 37598 which is installed at Gali No. 7, Wazirabad, Delhi, at 20:33:32 hrs to 21:31:34 hrs shown at Tower ID 15291 and 53423 which is installed at Sadatpur, Sonia Vihar, , at 21:45 hrs shown at Tower ID 15362 which is installed at Wazirabad, Delhi, at 22:09 hrs shown at Tower ID 6022 which is installed at Mukherjee Nagar and at 23:21 to 23:58 hrs shown at Tower ID 15361 which is installed at Wazirabad. As per CDR of mobile phone No. 9971775697 Ex. PW15/B, the location of mobile phone on 01.12.2012 at 20:23:16 hrs shown at Tower ID No. 18915 which is installed at Village Jagatpur, Delhi, at 20:23:53 hrs at Tower ID No. 15290 installed at Sadatpur Village and at 20:44:47 and at 20:44:47 hours at Tower ID 15290 which is installed at Sadatpur.
42. Normally every cell tower has three sectors/antenna having last number as 1,2 & 3 whereas the remaining numbers of the said cell tower are same. A mobile phone may catch the signal from another nearby tower if its signal is stronger or nearer to the mobile phone than the other tower and overlapping is possible at the end of the range of a tower. He has already proved cell ID Chart Ex.PW15/E. The CDRs Ex. PW15/B and Ex. PW15/D were generated by him from the main server of company connected with his computer. The said computer is only in my control and he has only been authorized by the company to generate the said CDRs. The said CDRs are not tampered with in any manner and he has already given certificate u/s 65 B of Evidence Act to this effect.
43. PW19 is Sh. Pawan Singh, Nodal Officer from Idea Cellular Limited, who proved the CDRs pertaining to mobile phone No. 9990626102 in the name of Accused Vikas S/o Sh. Jai Singh for the period 30.11.12 to 03.12.12 as Ex. PW19/A. This witness also brought the CAF of the aforesaid mobile phone and proved the copy of the same with ID proof as Ex. PW19/B as also the Cell ID Chart as Ex. PW19/C along with certificate under Section 65B of Indian Evidence Act as Ex. PW19/D. PW19 also produced the cell ID chart of Idea Cellular Limited of Delhi/NCR and proved the same as Ex.PW19/E. He deposed that as per CDRs of mobile phone No.9990626102, the location of mobile phone from 19:23 to 19:39 hrs was shown at Tower ID No.22051, which is installed at village Jagatpur. The location of the said phone was shown at Tower ID 21803 which is installed at Wazirabad at 21:45 hrs and from 21:55 to 22:01 hrs at Mukherjee Nagar. This witness further deposed that the CDR Ex. PW19/A was generated by him from the main server of company connected with his computer and that the said computer is only in his control and he has only been authorized by the company to generate the said CDR.
Expert Witness:
44. PW26 is Dr. Dhruw Sharma, Asstt. Director, Biology FSL, Rohini who deposed regarding receiving of nine sealed parcels along with sample seals of the case on 12.12.2012, which were assigned to him for Biological Examination as well as DNA examination. He further deposed that he had examined the exhibits and prepared a detailed report on 12.08.2013 and proved the same as Ex.PW24/A running into four sheets.
Police Witnesses:
45. PW11 HC Satender, who while working as Duty Officer on 03.12.2012 at PS Timarpur from 8 AM to 4 PM deposed that he received information regarding admission of Prosecutrix 'SJ' in Aruna Asaf Ali Hospital, on the basis of which he recorded the information vide DD No. 69B and proved the attested copy of the same as Ex. PW11/A.
46. PW10 HC Ishwar Dayal recorded the FIR of this case on 03.12.2012 while he was working as Duty Officer at PS Timarpur from 4 PM to 12 midnight, consequent upon receipt of rukka brought by Ct. Subh Karan sent by SI Vikram Dahiya at about 8:50 PM and proved the computerized copy of the same as Ex. PW10/A and his endorsement on the same as Ex. PW10/B.
47. PW14 is Ct. Subhkaran who joined the investigation of this case on 03.12.2012 along with SI Vikram and came to Aruna Asaf Ali Hospital where doctor handed over the pulanda and a sexual assault kit in sealed condition to the IO which he seized vide seizure memo Ex.
PW14/A. He further deposed regarding recording of the statement of Prosecutrix on the basis of which rukka was prepared and the same was handed over to him for registration of the FIR. He accordingly went to the PS, got the case registered and came back to Aruna Asaf Ali Hospital with copy of FIR and original rukka and handed over the same to the IO.
48. PW16 is W/Ct. Mamta who on 08.12.2012 while working as Constable at PS Timarpur reached at a house at Wazirabad along with SI Suman where victim 'SJ' met them. They took the victim to Aruna Asaf Ali hospital for her medical examination where she was medically examined and doctor collected some exhibits and handed over the same to SI Suman. This witness further deposed that doctor had taken only sample of scalp hair of victim and sealed the same and handed over to SI Suman, who seized the same vide seizure memo Ex. PW16/A.
49. PW25 is HC Sunil Kumar. He deposed that while working as MHC(M) at Timarpur on 03.12.12, ASI Santosh Sirohi deposited a sealed pulanda duly sealed with the seal of SS in the Malkhana vide entry No.3721 and proved the same as Ex.PW25/A. On the same day, he also received two sealed pulandas duly sealed with the seal of CMO AAA hospital along with sample seal vide entry No.3722 from SI Vikram and proved the copy of the same as Ex. PW25/B.
50. PW25 further deposed regarding having received one unsealed pulanda, two sealed pullandas and one car bearing registration No. UP 16 AE 8222 along with personal search articles as also some sealed exhibits duly sealed with the seal of CMO AAA hospital along with sample seal and three sealed pulandas sealed with the seal of SJ on 06.12.2012 and 07.12.2012 by SI Suman vide separate entries No.3727 and 3728 and proved the copies of the same as Ex. PW25/C and Ex. PW25/D respectively. PW25 also deposed that on 12.12.2012, nine sealed exhibits with six sample seals were sent to FSL through Ct. Anil vide RC No. 188/21/12 and he also made an entry in Register No.19 at point X vide Ex.PW25/A. This witness further deposed regarding receipt of exhibits along with FSL result in the malkhana on 23.08.2013 through Ct. Ravinder Kumar, which was later on handed over to the IO and an entry to this effect was made in Register No.19 at point Y vide Ex. PW25/A. This witness proved the RC register containing RC No.188/21/12 along with acknowledgment as Ex. PW25/E and Ex. PW25/F respectively.
51. PW18 HC Praveen deposed that on 06.12.2012, he was posted as HC at PS Timarpur. IO/W. SI Suman had an information that a Santro Car No.UP 16 AE 8222 may be involved in the crime and on verification, the address of the owner was revealed as Kherpur Gujar, so IO sent him and Ct. Anil to village Kherpur, Gujar. They went there. One person whose name was revealed as Rajpal, met them outside the village. They made inquiries from Rajpal about the aforesaid Santro Car. Rajpal told them that he had given the said car in the marriage of her daughter Rajni which was solemnized in 2011 with one Deepak and the said car was registered in the name of her daughter Rajni and also informed that the said car was in the possession of Deepak, the resident of village Jagatpur, Delhi. They informed about the said facts to IO/W. SI Suman on phone. They came back to Delhi and reached at Hanuman Chowk, Wazirabad there IO W. SI Suman along with SI Vikram Dahiya, Ct. Jhabarmal and Ct. Shubhkaran met us. They had nakabandi there and started checking of vehicles passing through from there on the basis of secret information. At about 6 PM, a Santro car bearing No. UP 16AE 8222 came from the side of Ramghat, Wazirabad. The car was stopped. Two persons were found sitting in the car. Accused Deepak was driving the said car and Accused Praveen was sitting besides him. He correctly identified both Accused when produced in court. On interrogation, Accused persons admitted their guilt. Accused Deepak was arrested vide arrest memo Ex. PW18/A and his personal search was conducted vide memo Ex. PW18/B. Accused Praveen was also arrested vide memo Ex. PW18/C and his personal search was conducted vide memo Ex. PW18/D. On interrogation, both Accused gave their disclosure statement vide Ex. PW18/E and PW18/F. Crime Team was also called at the spot. They inspected the car. One SIM make Vodafone was also recovered from the car which was lying under the left side front seat. The SIM was put into a polythene pullanda and sealed with the seal of 'SJ' and seized vide seizure memo Ex. PW18/G. Some scalp hair were also recovered from the car and converted into pullanda and sealed with the seal of 'SJ' and seized vide seizure memo Ex. PW18/H. The Santro car was also seized vide seizure memo Ex. PW18/I. Thereafter, we reached at the house of Accused Ashok Ekka at Gali No. 9, Wazirabad and he was apprehended at the instance of Accused Deepak. He correctly identified Accused Ashok when produced in court. On interrogation, Accused Ashok was arrested vide arrest memo Ex. PW18/J and his personal search was conducted vide memo Ex. PW18/K. Accused Ashok gave his disclosure statement vide Ex. PW18/L. One mobile phone make Nokia 5230 without SIM was recovered at his instance from his house. The mobile phone was seized vide seizure memo Ex. PW18/M.
52. PW18 further deposed that thereafter, they reached at the house at Gali No. 4, Village Jagatpur of Accused Vikas @ Vicky. He correctly identified Accused Vikas when produced in court. Accused Vikas was apprehended there at the instance of Accused Praveen. On interrogation, Accused Vikas was also arrested vide arrest memo Ex. PW18/N and his personal search was conducted vide memo Ex. PW18/O. Accused Vikas @ Vicky also made disclosure statement vide memo Ex. PW18/P. Before the arrest of Accused Vikas, Accused Praveen had led them to his house at Gali No. 4, Jagatpur and got recovered one leather purse of black colour which was found containing one Indian currency note of Rs. 10 and one coin of Kenya of denomination of 20. Same were put into a cloth pullanda and sealed with the seal of 'SJ' and seized vide seizure memo Ex. PW18/Q bearing my signatures at point A. Accused persons were kept in muffled face as their TIP was to be conducted. Accused persons were medically examined. Exhibits were deposited in the malkhana. IO recorded his statement.
53. PW18 further deposed that on 07.12.12 in the morning hours, he again joined the investigation with IO/SI Suman. Accused Vikas was taken out from the lockup. He led them to his house at Gali no. 4, Village Jagatpur from where he got recovered Rs. 900/ in the denomination of one currency note of Rs. 500/ and four currency notes of Rs. 100/ each from a wooden almirah. Currency notes were put into a pullanda, sealed with the seal of 'SJ' and seized vide seizure memo Ex. PW18/R. Thereafter, Accused led them to Shyam Ghat, Pusta Jagatpur. Accused pointed out the same to be the place of incident and at his instance five passport size photographs of victim, visiting cards, one nail file, one black comb and her refugee card and one SIM were recovered which were seized vide seizure memo Ex PW18/S. IO prepared site plan of the place of incident. Accused was medically examined and his statement was recorded.
54. PW20 W. SI Santosh Sirohi deposed that on 03.12.2012, she was posted as ASI at PS Burari. On that day, she was called at PS Timarpur. This case was already registered at PS Timarpur and was assigned to her for further investigation. She went to Aruna Asaf Ali Hospital, where Prosecutrix 'SJ' along with SI Vikram and W/Ct.Ritika met her. Prosecutrix was examined there. SI Vikram gave her the relevant documents and the sealed exhibits. From the hospital, Prosecutrix pointed out the place near CNG Station, from where she was made to sit in car. W. SI Santosh Sirohi prepared the site plan at her instance which is Ex. PW20/A. The Prosecutrix led them to the place of incident where she was raped i.e. near Shamghat. She also prepared the site plan which is Ex. PW20/B. From the place of incident, they reached at the house of the Prosecutrix at Jagatpur, Wazirabad and she produced her clothes i.e. one Shirt and one Jeans which she was wearing at the time of incident. PW20 W. SI Santosh Sirohi took the said clothes into a cloth pulanda and sealed the same with the seal of 'SS' and seized the same vide seizure memo Ex. PW1/B. She recorded the statement of Prosecutrix and was relieved. Then she along with the other police staff came back to the PS Timarpur. Case property was deposited in the malkhana. She recorded the statements of witnesses and deposited the case file with MHC(R) as the investigation was assigned to some other police officer.
55. PW21 SI Vikram Dahiya deposed that on 03.12.12 she was posted as SI at PS Timarpur. On that day, on receipt of DD No. 69B already Ex. PW11/A, he alongwith W. Ct. Ritika reached at Aruna Asaf Ali Hospital where he found victim 'SJ' under treatment in the hospital vide MLC No. 2692/12 . In the meantime, Ct. Subhkaran also reached in the hospital. The doctor who examined the victim handed over some sealed exhibits containing outer clothes and sexual assault kit with sample seal of hospital to Ct. Ritika which he seized vide seizure memo already Ex. PW14/A. Victim/Prosecutrix gave him a written complaint, which is already Ex. PW1/A. SI Vikra Dahiya also made enquiries from Prosecutrix who told him that her mobile phone, purse containing her belongings including currency, Icard, some documents and one SIM of Vodafone etc were also snatched by the assailants. He prepared rukka on the said written complaint which is Ex. PW21/A and handed over the same to Ct. Subhkaran, who took the same to Police Station for getting the FIR registered. After the registration of FIR, the case was assigned to ASI Santosh Sirohi for further investigation. She alongwith Ct. Subhkaran came at Aruna Asaf Ali Hospital. He handed over all the exhibits to her including MLC of Prosecutrix. IO recorded his statement.
56. PW21 SI Vikram Dahiya further deposed that on 06/12/2012, he again joined the investigation of this case with IO/SI Suman and Ct. Subhkaran and Ct. Jabarmal. They reached Hanuman Chowk, Wazirabad at around 5.30 pm. HC Praveen and Ct. Anil also came there. SI Suman had already a secret information that a car No. UP 16AE 8222 make Santro would come at Hanuman Chowk and the Accused involved in this case may be present in this car. They started checking the vehicles at Hanuman Chowk. At about 6.00 pm, a Santro Car bearing registration No. UP 16AE 8222 came there. The car was stopped. The name of the driver of the car was revealed as Deepak. Accused Praveen was sitting on the front passenger seat near Accused Deepak. PW21 correctly identified Accused Deepak and Praveen when produced in court. IO interrogated Accused Deepak. On interrogation, Accused Deepak admitted his guilt. Then he was arrested vide arrest memo already Ex. PW18/A. Personal search of Accused Deepak was conducted vide memo already Ex. PW18/B. One mobile phone make Nokia of dual sim containing one SIM of Airtel, was recovered from the personal search of Accused Deepak. Accused Deepak gave a disclosure statement already Ex. PW18/E. On interrogation, Accused Praveen also admitted his guilt. Then he was also arrested vide arrest memo already Ex. PW18/C. Personal search of Accused Praveen was conducted vide memo already Ex. PW18/D. Accused Praveeen also gave a disclosure statement already Ex. PW18/F.
57. PW21 SI Vikram Dahiya further deposed that IO called the Crime Team at the spot of arrest of the Accused. Crime Team came there and inspected the aforesaid car. On the directions of Crime Team, IO lifted some hair strands from the carpet near the rear seat behind the driver seat of that car. The same were converted into a pullanda, sealed with the seal of 'SJ' and seized by the IO vide seizure memo already Ex. PW18/H. One SIM of Vodafone was also recovered from the car which was lying near the driver seat. Same was also converted into a pullanda, sealed with the seal of 'SJ' and seized vide seizure memo already Ex. PW18/I. The said Santro car was also seized vide seizure memo already Ex. PW18/Z. From Hanuman Chowk, they reached at the house of the Accused Ashok @ Ikka at Gali no. 9, Village Wazirabad, near Pushta Road, Delhi at the instance of Accused Deepak and Praveen. Accused Ashok was found present there. He was apprehended and on interrogation, he also admitted his guilt. Then he was also arrested vide arrest memo already Ex. PW18/J. Personal search of Accused Ashok was conducted vide memo already Ex. PW18/K. One mobile phone make Samsung containing SIM of Aircel was recovered from his personal search. Accused Ashok also gave a disclosure statement already Ex. PW18/L. Accused Ashok also got recovered one mobile phone make Nokia model 5230 without SIM from an almirah of his house. The said mobile phone was also seized vide seizure memo already Ex. PW18/M. SI Vikram Dahiya correctly identified Accused Ashok @ Ikka when produced in court.
58. PW21 SI Vikram Dahiya further deposed that then they reached at the house of Accused Vikas @ Vicky at Gali no.4, Village Jagatpur, Delhi at the instance of all the aforesaid three Accused persons. Accused Vikas was present in the house. He was interrogated and on interrogation, he also admitted his guilt. Then he was also arrested vide arrest memo already Ex. PW18/N. Personal search of Accused Vikas was conducted vide memo already Ex. PW18/O. One mobile phone Chinese make of dual SIM containing one SIM of Idea and another SIM of Vodafone and one memory card of 2GB was recovered from his personal search. Accused Vikas also gave a disclosure statement already Ex. PW18/P. PW21 SI Vikram Dahiya correctly identified Accused Vikas when produced in court. Then they reached at the house of Accused Praveen which was situated in the same gali i.e. Gali no.4, Village Jagatpur. Accused Praveen got recovered a black coloured purse containing one currency note of Rs.10/ and one coin of Republic of Kenya. Same were converted into a pullanda, sealed with the seal of 'SJ' and seized vide seizure memo already Ex. PW18/Q. They came back to the PS. All the exhibits were deposited in the Malkhana. IO recorded his statement.
59. PW23 SI Suman deposed that on 04.12.2012, she was posted as PSI at PS Timarpur. On that day this case was assigned to for for further investigation. There was a vehicle number with them i.e. UP16AE222 and one number was missing. She sent HC Udham to Noida Authority for collecting the record of the vehicles, the last three digits of whose registration number was 222. HC Udham brought a list from Noida Authority of 14 vehicles, in whose registration last digit was 222. SI Suman got verified the status of all these vehicles on the date of incident through Ct. Surinder and Ct. Anil and after verification, they came to know that some vehicles were out of Delhi on the date of incident. On 05.12.2012, she went to the house of Prosecutrix and interrogated her about the descriptions of vehicles. After seeing some vehicles on the road, Prosecutrix told her that the make of the vehicle which was used in the commission of the offence was Santro. SI Suman recorded her supplementary statement. On 06.12.2012, SI Suman had an information that a Santro Car No.UP 16 AE 8222 may be involved in the crime and on verification, the address of the owner was revealed as Kherpur Gujar, so she sent HC Praveen and Ct. Anil to village Kherpur, Gujar. They informed her on phone that one person Rajpal told them that he had given the said vehicle to his daughter Rajni in her marriage with one Deepak, the resident of Gali No.1, Jagatpur Village. SI Suman along with SI Vikram Dahiya went to the house of Deepak. Ajab Singh, father of Deepak informed us that Deepak had taken the vehicle to some where else. Thereafter, she along with SI Vikram Dahiya started searching for the said vehicle in the area of Wazirabad. Ct. Subhkaran and Ct. Jhabarmal met me at Hanuman Chowk. I joined them in the investigation. She had information that Deepak in his vehicle UP16AE8222 will pass through Pusta Road through Village Jagatpur. We held Nakabandi at Hanuman Chowk, Waziarabad. HC Praveen and Ct.Anil also came at Hanuman Chowk and joined the investigation.
60. PW23 SI Suman further deposed that at about 5:306 PM, a Santro car bearing No. UP 16AE 8222 came from the side of Ramghat, Wazirabad. The car was stopped. Two persons were found sitting in the car. Accused Deepak was driving the said car and Accused Praveen was sitting besides him. She correctly identified Accused Deepak and Praveen when produced in court. SI Suman interrogated Accused Deepak, who disclosed about the incident. Accused Deepak was arrested vide arrest memo already exhibited as Ex. PW18/A and his personal search was conducted vide memo already exhibited as Ex. PW18/B. SI Suman called the crime team at the spot. She interrogated Accused Praveen who admitted his guilt and he was also arrested vide memo already exhibited as Ex. PW18/C and his personal search was conducted vide memo already exhibited as Ex. PW18/D. On interrogation, both Accused gave their disclosure statement already exhibited vide Ex. PW18/E and PW18/F. On inspecting the car, one SIM make Vodafone was also recovered from the car which was lying under the left side front seat. The SIM was put into a polythene pullanda and sealed with the seal of 'SJ' and seized vide seizure memo already exhibited Ex. PW18/G. Crime team also inspected the car. Some scalp hair were also recovered from the car and converted into pullanda and sealed with the seal of 'SJ' and seized vide seizure memo already exhibited Ex. PW18/H. Some chance prints were also lifted by the crime team. The Santro car was also seized vide seizure memo already exhibited Ex. PW18/I. Thereafter, they reached at the house of Accused Ashok Ekka at Gali No. 9, Wazirabad and he was apprehended at the instance of Accused Deepak. SI Suman correctly identified Accused Ashok when produced in court. On interrogation, Accused Ashok was arrested vide arrest memo already exhibited Ex. PW18/J and his personal search was conducted vide memo already exhibited Ex. PW18/K. Accused Ashok gave his disclosure statement vide already exhibited Ex. PW18/L. One mobile phone make Nokia 5230 without SIM was recovered at his instance from his house. The mobile phone was seized vide seizure memo already exhibited Ex. PW18/M. One mobile phone make Samsung was also recovered from the personal search of Accused Ashok. Thereafter, they reached at the house at Gali No. 4, Village Jagatpur of Accused Vikas @ Vicky. SI Suman correctly identified Accused Vikas @ Vicky when produced in court. Accused Vikas was apprehended there at the instance of Accused Praveen. On interrogation, Accused Vikas was also arrested vide arrest memo already exhibited as Ex. PW18/N and his personal search was conducted vide memo already exhibited as Ex. PW18/O. Accused Vikas @ Vicky also made disclosure statement vide memo already exhibited as Ex. PW18/P. One mobile phone make Chinese was recovered from the personal search of Accused Vikas. Accused Vikas also disclosed that he had one lady purse of Prosecutrix with him, which he got recovered from the Almirah of his house. On checking the leather purse, it was found containing one Indian currency note of Rs. 10 and one coin of Kenya of denomination of 20. Same were put into a cloth pullanda and sealed with the seal of 'SJ' and seized vide seizure memo already exhibited as Ex. PW18/Q. All the Accused persons were kept in muffled face as their TIP was to be conducted.
61. PW23 further deposed that on 10.07.14 she had inadvertently stated that one leather purse containing Indian currency note of Rs. 10/ and one coin of Kenya was recovered from Accused Vikas but in fact, the said recovery was effected from the house of Accused Praveen. PW23 SI Suman further deposed that she alongwith staff and the Accused reached at the spot i.e. Shyam Ghat for the search of articles belonging to the Prosecutrix. As it was night time and there was no proper light, so we could not search for it properly and nothing could be found. She recorded the statement of witnesses. Accused persons were taken to Aruna Asaf Ali Hospital for their medical examination. After medical examination of Accused persons, doctor handed over some sealed exhibits to her which she seized vide seizure memo Ex. PW23/A to Ex. PW23/D. During the all proceedings, Accused persons were kept in muffled face. They came back to PS. On the next day, Accused persons were brought out from lockup in muffled face. Accused Vikas again made his disclosure statement wherein he disclosed that he could get recovered Rs. 900/ from his house vide disclosure statement Ex. PW23/E. They went to the house of Accused Viaks at his instance. He got recovered Rs. 900/ in denomination of one currency note of Rs. 500/ and four currency notes of Rs. 100/ each from the almirah of a room. SI Suman seized the said currency notes in sealed condition vide seizure memo already Ex. PW18/R. Then they again went to Shyam Ghat at the instance of Accused Vikas. There one black comb, one cover of SIM card bearing SIM number, five passport size photographs of Prosecutrix, 67 visiting cards, photocopy of Refugee Card of UNHCR in the name of Prosecutrix, two recharge voucher of Vodafone of Rs. 60 each, one SIM of Aircel. All the articles were converted into a pullanda and sealed with the seal of 'SJ' and seized vide seizure memo Ex PW18/S. Accused persons were produced in court from there they were sent to J/C. SI Suman recorded the statement of witnesses.
62. PW23 SI Suman further deposed that on 08.12.12 she alongwith Ct. Mamta went to the house of Prosecutrix and took her to Aruna Asaf Ali Hospital where her some scalp hair were got sealed and seized vide seizure memo already Ex. PW16/A. She recorded the statement of Prosecutrix. On 12.12.12 all the exhibits were taken from malkhana and deposited the same in FSL, Rohini. On 14.12.12 statement of Prosecutrix was got recorded under Section 164 CrPC. SI Suman collected the copy of the same. She also got conducted the TIP proceedings of case property and collected the copy of the same.
63. SI Suman further deposed that she does not remember the exact date, she got conducted the TIP proceedings of Accused persons but the Accused persons refused to participate in judicial TIP. She collected copy of the TIP proceedings.
64. PW24 W. SI Veena deposed that on 17/01/2013, she was posted as SI at PS Timar Pur. On that day, this case was assigned to her for further investigation. She recorded the statement of Babu, who had brought the Prosecutrix to the PS. She also recorded the statement of MHC(M). She also recorded the statements of Rakesh Sehrawat, Pradeep Sehrawat and Ms. Suining Raman, a Social Worker of UNHCR. During investigation, she also collected the CDRs of mobile phones. She completed the investigation, prepared the charge sheet and filed in the Court since pending of FSL result. The FSL result was collected and filed in the Court which is Ex. PW24/A running into four sheets.
Other Witnesses:
65. Ms. Aparna Swami, Ld. MM was examined a PW28. She deposed that while working as MM at Tis Hazari Courts, Delhi she conducted TIP proceedings of Accused persons Deepak, Vikas @ Vicky, Ashok Ekka and Praveen @ Lallu at Tihar Jail which was marked to her vide order Ex. PW28/PX1. She further deposed that during the course of TIP proceedings, all the Accused refused to join the TIP proceedings and that she accordingly submitted the report of the TIP proceedings with respect to Accused Deepak, Vikas @ Vicky, Ashok Ekka and Praveen @ Lallu and proved the same as Ex.PW28/X2, Ex.PW28/X3, Ex.PW28/X4 and Ex. PW28/X5 respectively and handed over the copy of the same to IO vide order Ex. PW28/X6.
66. PW28 further deposed regarding having recorded statement of Prosecutrix under Section 164 Cr.PC who was being produced and identified by IO/WSI Suman on 14.12.2012 and gave certificate regarding the correctness of the same as Ex. PW28/B and also handed over the copy of the same to IO vide order Ex. PW28/C. PW28 also conducted TIP of the case property consequent upon receipt of an application for the same on 13.12.2012, which was fixed by her for 14.12.2012 at 2:30 PM vide order Ex. PW28/D and got the same done through the Prosecutrix and also gave certificate to this effect as Ex. PW28/E. A copy of the proceedings was also supplied to the IO vide order Ex. PW28/F.
67. PW12 is SI Satish Kumar who deposed that on 06.12.2012, consequent upon receipt of information from the control room, he along with Finger Prints Expert ASI Jai Singh Pal and Photographer Irshad Ahmed visited the spot i.e. the road near Hanuman Chowk, Jagatpur Pushta at about 7:30 PM, where a silver colour santro car bearing No. UP 16 AE 8222 was found parked. He inspected the car and found hair lying on the footmat of the backseat of car. He further deposed that he directed the IO to lift the same and that the car was further inspected by finger prints expert ASI Jai Singh Pal. PW12 proved his report as Ex. PW12/A and also deposed that the photographs of the spot were taken by the private photographer as their camera was not working.
68. PW13 is Sh.Raj Kumar, Sr. Assistant RTO, Noida who brought the summoned record related to vehicle i.e. Santro Car No. UP 16 AE 8222, as per which the car was registered on 07.09.2011 in the name of Ms.Rajni D/o Sh.Rajpal R/o Village Kherpur, Gujjar District Gautam Buddha Nagar, UP. He proved his report in this regard as Ex. PW13/A and the copies of the documents related to this vehicle collectively as Ex.PW13/B (running into four sheets). This witness have also seen the report given earlier to the police by his predecessor Sh. Yogender Nath Tiwari and proved the same as Ex. PW13/C. STATEMENT OF ACCUSED AND DEFENCE EVIDENCE:
69. In statement of Accused recorded under Section 313 Cr.P.C., all Accused pleaded innocence and false implication. Accused Deepak and Praveen stated that they have picked up from their respective houses.
All Accused examined witnesses in their Defence.
70. Sh. Sandeep Kumar was examined as DW1 for Accused Deepak. He deposed that on 05.12.2012, he along with one of his friends namely Vipin S/o Sh. Mahender Singh had gone to attend marriage of a relative of Vipin at Jonapur Village near Mehrauli. They went by a Santro Car bearing registration No. UP16 AE 8222. They left from our house at about 44.30 PM and while they were at Green Park, one police official namely Ct. Samay Singh Badhana of PS Timar Pur called on his mobile phone. He asked him to bring the said Santro car to PS Timarpur stating that it is involved in an accident. Thereafter, after attending the wedding, they came to PS Timarpur. Meanwhile, his brother i.e. Accused Deepak also called on his mobile phone from the PS and he also asked him that police officials require the said car and asked him to take the car to the PS. DW1 handed over the car to the police at about 1111.30 PM on 05.12.12. Police also took his mobile phone and mobile phone of his friend and made them sit in a separate room and at 4.30 AM on 06.12.12 police left them at their house in their own vehicle.
71. Sh. Vipin was examined as DW2 for Accused Deepak. He deposed that on 05.12.2012, he alongwith his friend Sandeep Kumar S/o Ajab Singh and one Arun S/o Sudhir went to attend a marriage ceremony of one of his relatives at village Jonapur near Mahrauli. While they were on the way to village Jonapur, somebody from PS Timarpur called on the mobile of Sandeep and asked him to bring the Santro car in which they were travelling bearing No. UP16 AE 8222 to PS Timarpur as the same is involved in some accident case. Thereafter, after attending the said marriage, they came to PS Timarpur and handed over the car to the police officials. Thereafter, DW2, Sandeep Kumar and Arun were made to sit in the PS and their mobile phones were taken away. At about 3.304 AM on 06.12.12, the police officials sent them to their respective homes in police vehicle.
72. Sh. Trishpal was examined as DW3 for Accused Deepak. He deposed that he is residing at village Jagatpur and is working in a factory of packing of pulses which is in the basement of house of Accused Deepak. He does not know the number of house. DW3 further deposed that on 05.12.12 at about 6.30 PM, 34 persons came in front of his factory and called for Accused Deepak. He came out of the factory and they asked him whether Deepak is there in the house or not. Thereafter, he also called upon Accused Deepak and he came down and thereafter, those 34 persons took him away with them.
73. Sh. Satender was examined as DW4 for Accused Vikas. He deposed that on 05.12.12 there was a marriage in his family. At 33.30 AM during the intervening night of 05/06.12.12, he came back to his house after 'Vidai Ceremony'. The said marriage function was organized adjacent to house of Accused Vikas. I saw police personnel came to house of Vikas and took him away. He tried to enquire with the police officials but they did not respond and left alongwith Accused Vikas.
74. Sh. Ashok was examined as DW5 for Accused Praveen. He deposed that Accused Praveen is his son. He is running a dairy. Accused Praveen used to work with him in his dairy. He deposed that on 01.12.12 Accused Praveen worked in the dairy till about 9 PM. After completing his work, he slept in the dairy. The said dairy is in Gali No. 0 which is at distance of 1 km from his house.
75. Sh. Ravinder was examined as DW6 for Accused Praveen. He deposed that he used to purchase milk from Accused Praveen since last 45 years. He deposed that on 01.12.12 he purchased milk from the dairy of father of Accused Praveen between 7.308 PM and Accused Praveen was present in that dairy at that time.
76. Sh. Amit was examined as DW7 for Accused Praveen. He deposed that he knows Accused Praveen as he is his neighbour. On 05.12.12 at about 33.15 AM about 810 police officials came to their gali. At that time, he was going to his dairy which he is running from Gali no. 3, Village Jagatpur, Delhi. Those police officials enquired from him house of Praveen S/o Ashok and he pointed out the house of Accused Praveen to them. He saw the police taking Accused Praveen and one more boy namely Vikas, who is also residing in his neighbourhood. Police took them in a gypsy and went away.
77. Ms Bobby was examined as DW8 for Accused Ashok. She deposed that Accused Ashok is his brother. On 05.12.12 at about 3.304 AM, two police officials came to their house at village Wazirabad where she was living with her parents and her brothers Ashok and Aakash. Those police officials took away Ashok with them and did not give any reply when she asked them as to why they are taking him. She further deposed that her parents are deaf and dumb. She went to PS alongwith her parents on the next morning i.e. 06.12.12 at about 6 AM but police officials did not tell her anything about her brother Ashok.
Arguments, Analysis and Findings:
78. I have heard the detailed submissions of Ld. Defence Counsel and Ld. Addl. PP for State and have also gone through the entire evidence on record.
79. By way of his extensive arguments, Ld. Defence Counsel, submitted that the Prosecution has failed to prove the case against Accused persons. The case of the Prosecution has been assailed by the Defence on various counts.
80. Firstly, it has been argued that the star witness of Prosecution i.e. Prosecutrix 'SJ' PW1 herself is neither a reliable witness nor does her testimony support the case of Prosecution. Ld. Defence counsel contended that Prosecution miserably failed to establish the identity of Accused persons from the testimony of Prosecutrix PW1. My attention is drawn to the fact that Prosecutrix, while being examined on 23.08.2013 stated that she is not certain whether all the Accused persons present in the court before her are same persons, who had committed raped upon her or not. Ld. Defence Counsel pointed out that reason for not identifying the Accused, as deposed by the Prosecutrix was twofold, i.e. darkness and her semi conscious state.
81. Ld. Defence Counsel further pointed out that PW1 'SJ' was crossexamined by the Prosecution on the next date i.e. 24.05.2013 with regard to identity of Accused persons, despite which, she deposed that she is sure that Accused are not same persons, who had committed the offence. She also denied the suggestion of the Prosecution that on 16.12.2012, she identified all the Accused persons in the PS or that her statement Ex. PW1/DA was recorded to this effect.
82. Ld. Defence Counsel further argued that the Prosecutrix did not even identify the Accused persons on the third day of recording of her testimony i.e. 25.9.2013 and it is only on fourth day i.e. 31.10.2013 that she deposed during the course of her crossexamination that as she is going through the incident over and over again in her mind, she is able to recollect the faces of assailants stating that their photos keep on coming in her head again and again. Thereafter, she pointed out towards Accused Deepak, Praveen and Ashok stating that she is certain they committed rape upon her on 01.12.2012. However, she was not able to state with certainty about the fourth Accused i.e. Accused Vikas.
83. It was contended by Ld. Defence Counsel that said identification of the Accused persons by the Prosecutrix on the fourth day of recording of her testimony is no identification at all, and the testimony of the Prosecutrix to this extent cannot be accepted. It was argued that the reason given by the Prosecutrix on 23.08.2013 for not being able to identify the Accused persons i.e. darkness and her semi conscious state, clearly indicates that she had not seen the Accused persons during the course of alleged incident and so her claim that she was now able to recollect the faces of assailants on 31.10.2013 is totally false and tutored.
84. It was further pointed out that as per the Prosecutrix, she did not mention anything about the physical description of the Accused persons to the police during the course of investigation. She was also duly confronted with her statement under Section 164 CrPC Ex. PW1/C wherein she had given no details about the physical description of the Accused persons.
85. It was next argued that testimony of Prosecutrix with regard to number of assailants, who allegedly committed rape upon her is also at variance with her earlier statements. Whereas the Prosecutrix PW1, upon stepping into the witness box, claimed that there were four persons in the car, who sexually assaulted her, but in her complaint Ex. PW1/A, she stated that there were three persons inside the car and she made no mention about the fourth assailant in her complaint with which she was duly confronted during her crossexamination. Thereafter, Prosecutrix in her statement recorded under Section 164 CrPC Ex. PW1/C also claimed about the presence of three Accused inside and car and made no reference to the fourth Accused.
86. Ld. Defence Counsel further argued that claim of the Prosecutrix that one of the Accused was wearing an earning and the court observations with regard to Accused Praveen having pierced ear, also cannot be read in evidence against Accused persons in as much as, it is for the first time that Prosecutrix made this claim before the court and did not state in any of her earlier statement if any Accused was wearing earing or had pierced ear.
87. The next contention of the Defence is that the claim of Prosecutrix PW1, that the number of offending vehicle was written by a passer by on her hand, who dropped her near her home on his motorcycle and she also gave the same to the police on separate piece of paper, does not stand substantiated by any other statement. Moreover, neither any such paper slip, nor the person who dropped the Prosecutrix to her house on his motorcycle was brought into the witness box during the entire course of trial.
88. Thirdly, as per the testimony of the Prosecutrix, the number of car which she gave to the police in her complaint was admittedly UP16AE222 whereas the Santro car which was seized during investigation and put to the witnesses during trial was bearing registration No. UP16AE8222.
89. Defence strongly argued that how the Investigating Agency traced the Santro car bearing registration No. UP16AE8222 has not been proved on record. Moreover, there is no evidence to connect the said Santro car bearing registration No. UP16AE8222, admittedly belonging to Rajni W/o Deepak, with the commission of offence in question. Rather, two Defence witnesses i.e. DW1 and DW2, categorically deposed that Santro car bearing registration No. UP16AE8222 was being used on 05.12.2012 by Sandeep, brother of Accused Deepak. Sandeep was examined as DW1 and has deposed that on 05.12.2012, he alongwith DW2 Vipin had gone to attend marriage of relative at Jonapur, Mehrauli. Ld. Defence Counsel thus, claimed that Prosecution has miserably failed to prove that it is Santro car bearing registration No. UP16AE8222 in the name of wife of Accused Deepak was in any manner connected with the commission of offence.
90. Fourthly, the Defence argued that DNA report Ex. PW24/A proved by PW26 Dr. Dhruv Sharma also does not come to the aid of the Prosecution as identity of the Accused cannot be said to be proved by way of said report. My attention is drawn to the fact that Prosecution failed to complete the chain of link witnesses by not examining PW Ct. Anil to establish that he took the pullanda containing aforesaid exhibits to FSL from the MHC[M] or that while the exhibits remained in his custody, the same were not tampered with. My attention is also drawn to the detailed crossexamination of PW26 Dr. Dhruv Sharma and on the basis thereof, it was argued by Ld. Defence Counsel that Prosecution has failed to establish the identity of Accused persons.
91. With regard to case of the Prosecution on the basis of CDRs of the Prosecutrix and the Accused, it was claimed by the Defence that since admittedly Prosecutrix as well as Accused persons were living in the area of village Jagatpur and Wazirabad, even if the CDRs and the location of the mobile phone of the Prosecutrix and the Accused prove the presence of Accused at the alleged place of occurrence, the same cannot be said to be sufficient to prove the case of the Prosecution.
92. The recovery of mobile phone, SIM card and the various articles belonging to the Prosecutrix is also disputed by the Defence on the ground that the same have been planted. It is submitted that for want of any independent witness, Prosecution has not been able to prove the recovery beyond reasonable doubt. Moreover, the recovery of articles allegedly belonging to the Prosecutrix from the area of Yamuna Pushta at instance of Accused Vikas also is no recovery in the eyes of law, it having been made from public place, accessible to various persons and thus cannot be considered to be a reliable piece of evidence.
93. It was further contended by Ld. Defence Counsel that perusal of CDR of the Prosecutrix Ex. PW6/C reveals that she was communicating with her said mobile phone from 19:01:11 hours onwards on the day of the alleged incident i.e. 01.12.2012. Also, the CDRs of the Prosecutrix Ex. PW6/C indicates that Prosecutrix was in touch with Koffi Ahmed on his mobile number 9560301889 [which number has been admitted to be of Koffi Ahmed by the Prosecutrix during the course of her deposition] at 19:01:11 and 19:24:09. It is contended that as per the case of the Prosecution in testimony of the Prosecutrix, she was allegedly abducted by Accused persons at 7 PM on 01.12.2012. However, CDR which shows her in conversation during the said period completely belies the case of the Prosecution.
94. It was further contended that infact, as brought out from the crossexamination of Prosecutrix, she had been working as sex worker. It has also come on record that she was illegally residing in India having no valid documents and it was her ploy to get registered the present false case only in order to stay in India illegally.
95. Further, it was pointed out by Ld. Defence Counsel that Prosecutrix later converted a case of robbery into a case of sexual assault. In this regard, reliance was placed on testimony of PW3 and it was argued that even as per this Prosecution witness, Prosecutrix only informed him about the robbery of her articles.
96. On the basis of aforesaid submissions, Ld. Defence Counsel submits that case of the Prosecution has not been established beyond reasonable doubt and that all the Accused, in these circumstances, are entitled to be acquitted.
97. Prosecution on the other hand, strongly argued that the allegations against Accused persons stand duly proved on record from the testimony of Prosecution witnesses examined on record. It was pointed out that Prosecutrix PW1 during the course of her examination before the court, clearly identified Accused Deepak, Ashok and Praveen, though she was unable to identify Accused Vikas. It was further submitted by Ld. Addl. PP that had Prosecutrix been tutored, as claimed by the Defence, there was no reason as to why she would also not identify Accused Vikas. It was further contended that Prosecutrix also indicated regarding involvement of Accused Praveen, who was found to have piercced ears during examination of the witness before the court.
98. Much reliance was placed upon by Prosecution on the DNA report Ex. PW26/A and it was claimed that the scientific evidence, duly corroborates the testimony of Prosecutrix.
99. Apart from this, MLC of Prosecutrix Ex. PW2/A also indicates presence of injuries upon her person thus, fortifying case of the Prosecution. The claim of the Prosecutrix 'SJ' that she was given beatings by the Accused persons and that she sustained injuries because of that also stands proved by the testimony of PW5 Dr. Shikha and her report with regard to eye injury of the Prosecutrix.
100. Ld. Addl. PP also placed reliance on the CDRs of the mobile phone of the Accused and the Prosecutrix, while submitting that the various CDRs exhibited on record duly establish the proximity of all the assailants as well as Prosecutrix near the place of occurrence and thereby corroborates testimony of Prosecutrix. Prosecution hence, argued that Accused be convicted for the alleged offences on all scores.
101. I have considered the arguments of the Prosecution as well as Defence and gone through the entire record including evidence, both oral and documentary. The evidence on record can be analyzed by categorizing it as under: TESTIMONY OF PROSECUTRIXPW1 :
102. The Accused have been facing trial on the charge that they abducted the prosectrix with an intent to force her or seduce her to have illicit intercourse and after kidnapping her, they raped her and robbed her of her belongings. Further, in view of the material on record, Accused Ashok Vikas and Praveen have also been facing trial on the allegations of recovery of stolen property belonging to Prosecutrix from Accused Ashok, Vikas and Praveen at their instance.
103. Considering the facts and circumstances of the case, first of all, the testimony of the Prosecutrix PW1 thus, needs to be analyzed in order to ascertain whether the Prosecution has been able to bring home the guilt of Accused persons or not.
104. It may be mentioned at this juncture before analyzing the testimony of PW1 that the typographical error in respect of date of incident, which occurred while recording the testimony of Prosecutrix on 23.05.2013, was duly corrected vide order dated 16.01.2014, since the incident is of 01.12.2012 and not 08.12.2012, as inadvertently typed on 23.05.2013 while recording testimony of Prosecutrix. By the same order, dated 16.01.2014, the typographical error which occurred on 24.05.2013 during crossexamination of Prosecutrix by Ld. Addl. PP, was also corrected.
105. The Prosecutrix PW1 claims to be a refugee from Rwanda and alleged that on 01.12.2012 at about 67 PM when she was going to Gandhi Vihar side on Foot, one girl who was black like her, called her by her nick name. One person was standing with her. When she walked to her to shake hands with her, somebody came from her behind and pushed her inside the car. She alleged that there were four persons inside the car and as the car started moving, they pressed her mouth with handkerchief and thereafter, her head started spinning but she could make out that those persons were giving her beatings and they all forcibly established physical relations with her many times against her wishes and also forced her to have unnatural sex. She was left at the bank of river by them in a very bad condition and was dropped home by passer by on his motorcycle. The said person also wrote something on her hand and later on she found that it was the registration number of the car in which the incident took place. She also claims that she handed over the number of that vehicle to the police and also noted down herself on a separate piece of paper. The number of the car was UP16AE222.
106. Prosecutrix also deposed that she was not wearing her undergarments and her body was in great pain. She was not having her mobile, purse and one shoe and her purse was containing her passport size photographs, photocopy of passport, photocopy of UN ID card, metro card, black colour comb, some visiting cards, cash of Rs. 1300/ and 20 Shillings of Kenya and one Aircel SIM card. She also claimed that she was carrying mobile even at the time of incident having number 8377949436.
107. It is a matter of record that on the first day of recording of her testimony, Prosecutrix PW1 deposed before the court that she was not certain whether Accused persons present in the court on that day were the same persons who had committed rape upon her as it was dark at the time of incident and she was in semiconscious state.
108. A complete reading of the deposition of Prosecutrix including her crossexamination conducted by Ld. Addl. PP on 24.05.2013 followed by her crossexamination reveal that it is only on fourth day of recording of her testimony that she was able to point out that Accused Praveen, Deepak and Ashok were three assailants, though she could not identify the fourth offender.
109. In the light of the aforesaid statement of the Prosecutrix to this extent, I find myself inclined to agree with the submissions of Ld. Defence Counsel that the Prosecutrix PW1 was unable to identify any of the Accused persons before court. Her claim that she was now able to recall the faces of Accused Ashok, Deepak and Praveen only on 31.10.2013, cannot be accepted in view of her earlier statements, particularly her testimony that since it was dark and she was in semiconscious condition, she could not identify Accused persons in the court upon seeing them for the first time on 23.05.2013.
110. Be that as it may, I find upon going through the deposition of PW1 in its totality that though she was unable to identify the offenders before the court during trial, however, she narrated the incident in question before the court with precision and despite a lengthy crossexamination, her deposition with regard to incident dated 01.12.2012 remained unshaken.
111. I may hasten to add at this juncture that minor contradictions which were sought to be brought out during her crossexamination by the Defence are not so material, so as to be fatal to the case of the Prosecution. The Prosecutrix, to my mind, in view of the facts and circumstances of the case, also cannot be expected to remember each and every minute detail, nor can her testimony be expected to be 'parrotlike' after nearly 56 months of the incident.
112. Upon going through the testimony of Prosecutrix, I find that she categorically brought out before the court that during the incident of rape on 01.12.2012 offenders, caused injuries upon her person by giving her beatings. The injuries upon the person of the Prosecutrix have been duly proved by way of MLC Ex. PW2/A. The injuries caused on the eye of Prosecutrix have also been brought out from the testimony of PW5 Dr. Shikha and her report on MLC Ex. PW2/A itself.
113. Though it has been vehemently argued by Ld. Defence Counsel that testimony of prosectrix with regard to number of offenders also keeps varying with her statements recorded during investigation and trial, I find that this argument of the Defence also does not affect the case of the Prosecution in any material particulars. Ld. Defence Counsel submitted during the course of his arguments that though Prosecutrix upon stepping into the witness box claims that there were four offenders inside the car. However, during investigation, she claimed in her complaint Ex. PW1/A as well as in her statement under Section 164 CrPC Ex. PW1/C, that there were only three offenders inside the car. It has been argued by Ld. Defence Counsel that Prosecution has failed to establish as to who these three assailants were out of the four Accused, who has been facing trial in this case, thereby, completely demolishing the case of the Prosecution.
114. On going through the record, I find, however, unable to agree with the aforesaid submissions of Ld. Defence Counsel. Prosecutrix PW1 during her deposition before the court, deposed that she was raped by four offenders. It is noteworthy that during the course of investigation, a statement of Prosecutrix was recorded under Section 161 CrPC on 03.12.2012, wherein she clarified that there were four persons who raped her. In these circumstances, it cannot be argued that Prosecutrix deposed about the fourth offender for the first time in court or that her statement should be discarded on this ground.
115. It is also pertinent to note that the statement of Prosecutrix recorded under Section 161 CrPC on 03.12.2012 was recorded much prior to the arrest of any of the Accused persons in the present case. At that point of time, the Investigation Agency had no reason whatsoever to falsely implicate any of the Accused persons or to a record incorrect statement of the Prosecutrix.
116. It is also necessary to keep in mind that considering the nature of assault which Prosecutrix was allegedly subjected to, it is not inconceivable that she would not be able to recollect all the facts immediately, and may later on be able to recollect and inform the Investigation Agency that there were in fact four assailants.
117. In the light of the aforesaid, the argument of the Defence that Prosecutrix deposed regarding presence of fourth offender for the first time before the court thus making her statement unreliable, being an improvement, must necessarily be rejected.
118. It is also very much conceivable that a victim of gang rape may be able to recollect some facts at a later stage and the testimony of Prosecutrix that one of the assailants was wearing earing ought not to be outrightly rejected, keeping in view the entirety of facts and circumstances of the case. Pertinently, it has been duly recorded as court observation during recording of testimony of PW1 that Accused Praveen found having pierced ear.
119. Upon going through the record of the case in its entirety, I also find myself unable to accept the arguments of the Defence that the Prosecutrix later on converted case of robbery into case of gang rape or that testimony of PW3 supports this claim of the Defence.
120. It may be noted that though PW3 Mohd. Babu did not state anything regarding the Prosecutrix having informed him about the commission of rape upon her, yet a careful reading of his deposition reveals that he categorically stated that he was not able to understand what the Prosecutrix told him in broken Hindi. Moreover, the Prosecutrix apparently met Mohd. Babu after she was dropped to her house after the incident. At that point of time, it cannot be expected from a victim of gang rape to spell out the incident to anyone cohrently and with precision. In these circumstances, the contention of the Defence that Prosecutrix converted a robbery case into a case of gang rape, also does not seem acceptable and deserves to be rejected.
DNA EXAMINATION:
121. As aforesaid, Prosecution placed much reliance on the report of PW26 Dr. Dhruv Sharma, Assistant Director [Biology], FSL, Rohini. This expert witness, after examining the exhibits sent to the FSL, submitted his detailed report Ex. PW24/A. As per said report, human semen was detected on the following exhibits of the Prosecutrix:
[i] Ex. 1el [vaginal swab] [ii] Ex. 1e2 [vaginal smear on microslides] [iii] Ex. 1f [cervical swab] [iv] Ex. 1j [vaginal washing] and [iv] Ex. 3a [one jean's pant].
122. The said exhibits were collected by the examining doctor i.e PW4 Dr. Namrata Saxena during medical examination of the Prosecutrix.
123. As per report Ex. PW24/A, the blood samples of Accused Praveen, Ashok, Deepak and Vikas were subjected to DNA isolation. The result of the DNA analysis as per report Ex. PW24/A is as follows: "DNA allelic data of exhibits 6a, 7a, 8a and 9a [blood samples on gauze of Accused Praveen, Ashok, Deepak and Vikas respectively] were found to be accounted in mixed DNA allelic data of exhibits 1e1, 1e2, 1f, 1j and 3a [samples of Prosecutrix]"
124. Thus, as per report of PW26 Dr. Dhruv Sharma, the DNA lifted from the samples of the Prosecutrix i.e. Ex. 1el, 1e2, 1f, 1j and 3a were found tallying with the DNA lifted from the blood samples of the above named four Accused.
125. PW26 Sh. Dhruv Sharma was subjected to a detailed cross examination. Despite the extensive crossexamination of PW26 Dr. Dhruv Sharma, his testimony remained unshaken. The scientific evidence by way of DNA analysis brought on record by Prosecution, to my mind, thus, clearly etsablishes that DNA of all four Accused persons was found present in the vaginal swab, vaginal secretion and cervical swab of Prosecutrix, thereby proving the case of the Prosecution beyond realm of reasonable doubt.
126. The argument of the Defence that DNA report Ex. PW24A is doubtful or that there is chance of human error in arriving at the conclusion as noted by Dr. Dhruv Sharma, deserves rejection. There is no ground whatsoever to disbelieve the report of expert witness. There can be no other possible explanation for presence of human semen of Accused Praveen, Ashok, Deepak and Vikas in the vaginal swab, vaginal secretion and cervical swab of Prosecutrix.
127. I may also add that although Ld. Addl. PP strongly argued that jean's pant of Prosecutrix [Ex. 3a] was also found containing semen of Accused Praveen, Ashok, Deepak and Vikas, however, in view of the fact that jean's pant Ex. 3a stated to be belonging to Prosecutrix was not put to the Prosecutrix during trial, this argument of the Prosecution cannot be accepted.
128. I may further hasten to add this juncture that though as per the case of the Prosecution, the incident in question took place on the night of 01.12.2012 and the Prosecutrix was medically examined on 03.12.2012, when the exhibits/samples were taken by examining doctor, the presence of semen even after 02 days of the incident in the vaginal swab, vaginal secretion and cervical swab of Prosecutrix, has not been questioned by the Defence. The testimony of PW4 Dr. Namrata Saxena, who collected these exhibits remained unrebutted in this regard. I may also refer to a recent pronouncement of Hon'ble Delhi High Court in Ranjit Kumar Vs State 2012 I AD (DELHI) 925 wherein Hon'ble Delhi High Court referred to 'Parikh's Jurisprudence and Toxicology' V Edition Page 445 wherein it has been stated as under:
"Presence of Spermatozoa and other microorganisms:
Normally, sperms remain motile in the vagina for about two to three hours and nonmotile forms are detectable for about 24 hours. Motility persists longer at body termperature. The sperms remain motile in the uterine cavity for 35 days. Nonmotile forms may be found in the female genital tract for about 3 weeks to 3 months or more after death".
129. In the same judgment, Hon'ble Delhi High Court also referred to 'Modi's Medical Jurisprudence and Toxicology' 23rd Edition wherein on page 929 it has been stated as under:
"The presence of Spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by Morrison (1972) upt to 09 days in the vagina and 12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period."
130. On page 947, Modi records under the heading 'Case Law Stains of Blook, Sperms (or other Fluids, Urine, Faeces) on the Clothes of the Victim and the Accused as under:
"Motile Spermatozoa can be found for as long as 100 hours and non motile for as long as 17 days."
131. Therefore, in the light of the above, there is no room for doubt regarding either the samples taken during medical examination of Prosecutrix on 03.12.2012, or the report of DNA Analysis Ex. PW24/A, which to my mind, clinches the case of the Prosecution, and clearly establishes that it is the Accused Ashok, Praveen, Deepak and Vikas, who committed rape upon PW1, as deposed by her.
Medical Evidence :
132. As discussed hereinabove, the testimony of Prosecutrix PW1, though cannot be accepted with regard to the identity of the Accused for the reasons discussed above, yet her deposition clearly spells out the incident in question. The Prosecutrix PW1 clearly deposed that she was given beatings by the assailants and her whole body was in great pain. Though PW1 was extensively crossexamined by the Defence, her deposition with regard to beatings given to her remained unrebutted as she was not given any suggestion with regard to the same. The unrebutted testimony of the Prosecutrix with regard to beatings given to her stands duly corroborated from the deposition of PW2 Dr Solomi, who was working as CMO in Aruna Asaf Ali Hospital on 03.12.2012 and who examined the victim on 03.12.2012 vide MLC Ex. PW2/A. It is apparent on going through the MLC of the Prosecutrix that not only did she tell the examining doctor at the time of recording of her alleged history that she was sexually and physically assaulted while she was in semiconscious state, but also upon her examination, the following injuries, as mentioned in the MLC Ex. PW2/A, were noted by the examining doctor: i] Small superficial abrasions on left knee and right leg healing with scab formation.
ii] Tenderness on the front of neck.
iii] Swelling and mild brushes over left eye and congestion of conguctiva. iv] Mild tenderness over M/L cheeks.
133. Moreover, PW5 Dr. Shikha Aggarwal, Eye Specialist, who examined the Prosecutrix on 3.12.2012 and opined that the Prosecutrix was having complaint of photophobia, both eyes. On examination, she found haematoma [swelling in both eyes due to blood deposit on account of injury] in both eyes. She also found congestion [redness] in both eyes. Her report to this effect forms part of MLC Ex. PW2/A. The testimony of PW5 Dr. Shikha Aggarwal also remained unrebutted.
134. The Prosecution, has thus by way of testimony of Prosecutrix, coupled with corroborative evidence by way of MLC Ex. PW2/A and the deposition of the examining doctor PW2 Dr. Solomi and PW5 Dr. Namrata Saxena, to my mind, has been able to establish beyond reasonable doubt that Prosecutrix was given beatings by the Accused persons during act of gang rape committed by them upon her on the night of 01.12.2012.
135. It may be reiterated even at the cost of repetition that though the testimony of Prosecutrix with regard to identity of Accused persons has not been found to be acceptable, yet their identity stands clearly established on record by way of DNA Analysis Report Ex. PW24/A.
136. It may also be necessary to mention that the fact that all Accused refused to participate in TIP proceedings, an adverse inference is thus liable to be drawn against them for this reason. DELAY IN FIR:
137. Though the Defence vehemently argued that there is a delay of 02 days in registration of FIR, I am of the opinion upon going through the record of the case that the said delay has been satisfactorily explained by the Prosecutrix by way of her deposition. She deposed that she was taken to PS Timarpur by her neighbour, who has been examined as PW3. She further deposed that police did not write her complaint. She begged them to take her to hospital, but they did not take her there. They asked her to show the place of incident, but they did not believe her and she was not taken to hospital and rather, informed that hospital would be closed it would be Saturday/Sunday. Prosecutrix further deposed that her brother approached one NGO which works for refugees and with their help, she was taken to Aruna Asaf Ali Hospital for her medical examination. She was also provided legal help from Socio Legal Information Center [SLIC] and lawyer from SLIC also reached the hospital and then police came to the hospital and recorded her statement ultimately on 03.12.2012 which is Ex. PW1/A. From the aforesaid testimony of the Prosecutrix, it is apparent that the delay, if any has been caused on account of the inaction on part of the police and cannot be attributed to the Prosecutrix. The Prosecutrix has rather explained the delay satisfactorily and the same cannot be considered to be of any benefit in favour of the Accused.
RECOVERIES:
138. The case of the Prosecution stands further fortified from the testimony of various Prosecution witnesses examined on record who proved the recovery of various incriminating articles from possession of and at the instance of the Accused persons.
Recovery of Santro Car bearing No. UP16AE8222 and Recovery of Scalp hair and SIM Card of Prosecutrix from the said Car :
139. PW18 HC Praveen and PW21 SI Vikram Dahiya deposed regarding recovery of Santro car Ex. P4 from possession of Accused Praveen and Deepak on 06.12.2012.
140. On the other hand, it has been contended by Defence that as per testimony of Prosecutrix PW1, vehicle in which the offence in question is alleged to have been taken place was bearing No. UP16AE222. PW1 also deposed that the person who dropped her near her house on his motorcycle wrote something on her hand which she later found that it was registration number of car in question. She further deposed that she had noted down the said registration number herself on a separate piece of paper which she later showed to the police.
141. Ld. Defence Counsel strongly argued that neither the said motorcyclist, nor said piece of paper on which Prosecutrix is stated to have been written the registration number of the car, were brought on record during trial.
142. Moreover, Prosecutrix herself did not spell out the description of the said car in question to the Investigating Agency and that the Investigating Agency has planted Santro Car bearing No. UP16AE8222 admittedly belonging to Rajni, wife of Accused Deepak, only with a view to falsely implicate the Accused.
143. It was further argued that there is nothing on record to prove the involvement of car bearing No. UP16AE8222. The recovery of said car from the possession of Accused Praveen and Deepak has also been challenged by the Defence on the ground that neither of the said Accused were in possession of the car on 06.12.2012 and rather, car was asked to be brought to the police station on the night of 05.12.2012 and planted thereafter. In this regard Defence examined DW1 Sandeep and DW2 Vipin.
144. Ld. Addl. PP on the other hand, contended that Complainant admittedly gave registration No. UP16AE222 of the car in question to the Investigating Agency. PW23 SI Suman also deposed before the court on similar lines and stated that when investigation of the case was handed over to her on 04.12.2012, the vehicle number which was available with them was UPAE222 and one digit of the number was missing. She deposed that she sent HC Udham to Noida Authority for collecting the record of the vehicles, the last three digits of whose registration number was 222. HC Udham brought a list from Noida Authority of 14 vehicles, in whose registration last digit was 222. She further deposed that she got verified the status of all these vehicles on the date of incident through Ct. Surinder and Ct. Anil and after verification, they came to know that some vehicles were out of Delhi on the date of incident. She further deposed that during investigation, the Prosecutrix after seeing some vehicles on the road, told her that the make of the vehicle which was used in the commission of the offence was Santro. She recorded her supplementary statement to this effect.
145. PW23 further deposed that on 06.12.2012, she had an information that Santro Car No. UP16AE8222 may be involved in the crime and upon verification, the address of the owner was revealed as village Kherpur Gujar. She sent HC Praveen and Ct. Anil to the said village, who informed her on phone that one person Rajpal told them that he had given the said vehicle to his daughter Rajni at the time of his marriage with Accused Deepak.
146. It may be reiterated that in his statement recorded under Section 313 CrPC, Accused Deepak has not disputed the fact that Santro car bearing No. UP16AE8222 was give to his wife by her father at the time of their marriage and that car is registered in the name of his wife Rajni.
147. PW23 SI Suman was extensively crossexamined, wherein also she admitted that no vehicle bearing registration No. UP16AE222 was found registered in any Authority as the said number was incomplete. Ld. Defence Counsel further argued that since the Prosecution did not examine HC Surender and Ct. Anil, who as per PW23 verified the registration number of vehicle in question, Prosecution has failed to establish its case and car in question has been planted. It is further pointed out that despite the fact that Prosecution examined PW13 Raj Kumar from RTO Noida, who produced record regarding registration of Santro car bearing No. UP16AE8222 in name of Rajni, yet this witness was not examined to prove that car is registered in the concerned registration Authority having registration number UP16AE222.
148. However, upon a complete reading of the evidence on record, I find that though Prosecution has not examined Ct. Anil and Ct. Surender, who were sent by PW23 SI Suman to verify the registration number of the car, yet it is apparent that the number given to the Investigating Agency by the Prosecutrix is an incomplete number. Incidently, this fact has not been denied by Defence in view of the suggestion given to PW23 in her cross examination dated 18.07.2014 where PW23 has admitted that no vehicle was found registered in any Authority with number UP16AE222, it being incomplete.
149. I find myself unable to except the contention of the Defence that Santro car of Rajni W/o Deepak bearing registration No. UP16AE8222 has been falsely planted in this case. It is noteworthy that as per testimony of PW18 HC Praveen and PW21 SI Vikram Dahiya, car bearing registration No. UP16AE8222 was recovered from possession of Accused Deepak and Praveen on 06.12.2012. PW23 SI Suman also deposed that on receipt of information with regard to the aforesaid car, Santro car bearing No. UP16AE8222 driven by Accused Deepak accompanied by Accused Praveen, who is also stating to be sitting in the car at that time, was stopped and both the aforesaid Accused persons were interrogated and arrested. Upon inspection of the car, one SIM make Vodafone was also recovered from the car which was lying on front seat of the car. The said SIM was seized vide seizure memo Ex. PW18/G. The car was inspected by Crime Team and as per the report of PW12 SI Satish, some hair were also found lying on the footmat of back seat of the car. It has been established from the deposition of PW18 HC Praveen, PW21 SI Vikram Dahiya and PW23 SI Suman that said hair recovered from the Santro car in question on 06.12.2012 were taken into police possession vide memo Ex. PW18/H. The Santro car Ex. P4 was also seized vide seizure memo Ex. PW18/Z. Further, PW1 Prosecutrix also identified Santro bearing No. UP16AE222 in court.
150. From the evidence led on record, it has been established that Vodafone SIM Ex. P6 recovered from the Santro car vide seizure memo Ex. PW18/I belongs to the Prosecutrix. In this regard, reference may be made to the fact that number found written on the SIM was 84004589613 as same number which is reflected in the Customer Application Form of the mobile phone of the Prosecutrix Ex. PW6/A. It may be noted that the Vodafone SIM recovered from the possession of the Accused Vikas @ Vicky during his personal search vide personal search memo Ex. PW18/O is having the same IMEI number which can be seen on his Customer Application Form Ex. PW6/E. It may also be noted that the initial 09 digit of the SIM numbers on both the Customer Application Forms Ex. PW6/A and Ex. PW6/E i.e. of the Prosecutrix and Vikas @ Vicky are the same. From the aforesaid, it thus stands established that Vodafone SIM recovered from the Santro car, seized from the possession of Accused Praveen and Deepak belongs to the Prosecutrix.
151. Further, the hair recovered from Santro car vide seizure memo Ex. PW18/H have also been proved to be scalp hair of Prosecutrix as per FSL report Ex. PW26/A.
152. Moreover, having gone through the depositions of DW1 and DW2, it is apparent that are riddled with contradictions and the versions of these DWs is clearly at variance with each other, in respect of number of persons who went to attend the marriage of relative of DW Vipin. Moreover, there is no documentary evidence either of the marriage ceremony or the fact that it was attended by DW1 and DW2 on 05.12.2012. Admittedly, no complaint was made by DW1 and DW2 or by any other relative against the alleged act of the police directing them to produce the car at PS Timarpur on 05.12.2012.
153. Considering the aforesaid evidence, I am of the opinion that Prosecution has been able to establish the recovery of Santro car bearing No. UP16AE8222 from possession of Accused Deepak and Praveen. It has also been proved on record that SIM of Vodafone and scalp hair belonging to the Prosecutrix were recovered from the seat of the Santro car thus, connects the said vehicle with the commission of the offence in question. Moreover, there appears to be no reason whatsoever for false implication of Accused by the police or by the Prosecutrix. Recovery of mobile phone make Nokia 5230 of Prosecutrix :
154. The depositions of PW18 HC Praveen, PW21 SI Vikram Dahiya and PW23 SI Suman clearly establish the recovery of mobile phone make Nokia 5230 [without SIM] at the instance of Accused Ashok from his house. Despite their crossexamination, the deposition of aforesaid witnesses to this effect remained unrebutted.
155. The recovery of mobile phone make Nokia 5230 without SIM at the instance of Accused Ashok from his house having been established, what is material to note that this mobile phone has been proved to be a mobile phone being used by the Prosecutrix at the time of incident in question.
156. In order to prove that the Prosecutrix was subscriber of mobile bearing No. 8377949436, the Prosecution relied upon Customer Application Form Ex. PW6/A and the CDR of the said mobile phone No. 8377949436 Ex. PW6/C. It clearly reflects IMEI number of the said mobile phone as the same IMEI number mentioned on the seizure memo Ex. PW18/M of the mobile phone make Nokia 5230 [without SIM], recovered at the instance of Accused Ashok, thus, establishing beyond reasonable doubt that mobile phone make Nokia 5230 [without SIM], recovered at the instance of Accused Ashok from his house on 06.12.2012 is the mobile phone of Prosecutrix PW1. The said mobile phone was also correctly identified by Prosecutrix when the same was put to her during trial.
Recovery of purse of Prosecutrix and its contents:
157. The testimony of PW18 HC Praveen, PW21 SI Vikram Dahiya and PW23 SI Suman, to my mind, also clearly establish the factum of recovery of purse of the Prosecutrix at the instance of Accused Praveen from his house alongwith its contents Ex. P5 and Ex. P3 vide seizure memo Ex. PW18/Q. It may be noted that though initially on 30.05.2013, the Prosecutrix deposed that purse Ex. P5 does not belong to her, however, later the purse Ex. P5 was correctly identified by her as the same purse which was also identified by her during TIP proceedings conducted by PW28 Ms Aparna Swami, Ld. MM/Delhi. The contents of the purse Ex. P3 were also duly identified by Prosecutrix, both during TIP proceedings as well as during the course of trial when the same were put to her. Thus, by way of aforesaid evidence, Prosecution, has been able to prove the recovery of purse belonging to the Prosecutrix and its contents at the instance of Accused Praveen from his house.
Recovery of Indian currency notes of Rs. 900/ and belongings of Prosecutrix :
158. Though it was argued by Ld. Addl. PP that from the testimony of PW18 HC Praveen and PW23 SI Vikram Dahiya, establishes the recovery of Indian currency notes totalling to Rs. 900/ Ex. P7 [colly] at the instance of Accused Vikas from his house which were seized vide seizure memo Ex. PW18/R, however, since the Prosecutrix PW1 did not identify the said currency notes, nor the Investigating Agency prepared any inventory by serial number of currency notes before seizing the same, the Prosecution, to my mind, has failed to prove the recovery of said currency notes at instance of Accused Vikas.
159. It is further the case of the Prosecution that Accused Vikas led the police to the place of occurrence i.e. Shyam Ghat, Yamuna Pushta, Jagatpur, Delhi and pointed out the place of incident. Further, at his instance, five passport size photographs of Prosecutrix, one black comb, photocopy of Refugee card of UNHCR in the name of Prosecutrix, 67 visiting cards, two recharge voucher of Vodafone of Rs. 60 each, one SIM of Aircel and one cover of SIM card bearing SIM number were recovered which were seized vide seizure memo Ex. PW18/S.
160. The recovery of these articles at the instance of Accused Vikas has been challenged by the Defence on the ground that any recovery from an open place is no recovery in the eyes of law. This argument, however, needs to be rejected as though area of Shyam Ghat, Yamuna Pushta, Jagatpur, Delhi is an open place, however, there is no evidence on record whatsoever that it is extremely busy public place. Moreover, as per seizure memo Ex. PW18/S, recovery of the aforesaid articles Ex. P2 [colly] was effected at the instance of Accused Vikas from the bushes and keeping in view the fact that Accused Vikas disclosed about the specific place from which recovery of Ex. P2 [colly] was effected. I find that the said recovery at the instance of Accused Vikas cannot be doubted.
161. Further, although it has been contended by Defence that the recovery of the aforesaid artices have not been proved beyond reasonable doubt for want of joining of any independent witness at the time of any of the said recovery. I am, however, unable to subscribe to this argument of Ld. Defence Counsel in view of the recent pronouncement of Delhi High Court in case of Rattan@ Ratan Singh Vs State (Govt. of NCT of Delhi) 2013 II AD (DELHI) 288. In the said case, reliance was placed upon judgment of Hon'ble Apex Court in case titled as Ajmer Singh Vs State of Haryana 2010 (2) SCR 785 where it has been held that "it is not always possible to find independent witnesses at all the places at all the times. The obligation to join public witnesses after genuine efforts, the recovery made by the officer would not be vitiated."
CALL DETAIL RECORDS:
162. Prosecution as aforesaid placed strong reliance on the CDRs of the Accused and the Prosecutrix exhibited by various Nodal Officers, who have been examined as Prosecution witnesses during trial. Based on their testimonies and CDRs, it has been argued that location of the mobile phone of the Prosecutrix and Accused persons at the place of incident is clearly established from the said record.
163. However, in this regard, I find myself in agreement with the submissions of Ld. Defence Counsel that since the Prosecutrix as well as all the Accused are admittedly resident of area of Wazirabad and Jagatpur, the location of their mobile phone in the area in question at the time of alleged incident, does not in any manner support the case of the Prosecution.
TIME OF INCIDENT:
164. The Defence has also argued that the time of the incident, as stated by the Prosecutrix in her testimony is 67 PM, is also so reflected in her MLC Ex. PW2/A. Ld. Defence Counsel pointed out that the claim of the Prosecutrix that she was kidnapped and raped by the Accused persons at the said time is completely falsified by the CDR of Prosecutrix Ex. PW6/C, which indicates that Prosecutrix was communicating with her brother Kofi Ahmed on his mobile No. 9560301889, which number has been admitted by the Prosecutrix as belonging to Kofi Ahmed. Ld. Defence Counsel, thus, argued that case of the Prosecution completely stands demolished in view of the said entires in the CDRs of the Prosecutrix Ex. PW6/C.
165. On the other hand, Ld. Addl. PP contended that though PW1 deposed that she was kidnapped at about 67 PM, however, keeping in view the nature of offence and the fact that she was kidnapped and raped by four Accused persons and thereafter, left in bad condition at Shyam Ghat, Yamuna Pushta, Jagatpur. Prosecutrix cannot be expected to recall and state exact time of the incident in her testimony. Ld. Addl. PP contended that it is not humanly possible for a victim of gang rape to note down exact time of the incident and the testimony of the Prosecutrix must be given due weightage irrespective of the time of incident, as deposed by her.
166. He further argued that case of the Prosecution stands fortified from the CDR of the Prosecutrix Ex. PW6/C itself, inasmuch as said CDR indicates that there was no conversation from the mobile phone of the Prosecutrix either incoming or outgoing between 20:8:29 till 23:41:29 implying thereby that phone of the Prosecutrix was not used after about 8:08 PM till 11:45 PM, during which period the incident in question took place.
167. Upon considering the aforesaid submissions and the evidence on record, I am in agreement with the contentions of the Prosecution in this regard. It certainly cannot be expected from a victim of gang rape to note down, with precision, the exact time of the incident or to recite the same before the court during trial. It may also be noted that Prosecutrix never claimed that she was kidnapped exactly at 6 PM or 7 PM and rather, she deposed that it was "at about" 67 PM. Similarly, PW3 Mohd. Babu saw Prosecutrix weeping in front of her flat on 01.12.2012 between 911 PM. He also added that "I do not remember the exact time." Accordingly, I find no force in the contention of the Defence that case of the Prosecution ought to be rejected merely because of difference in time in the testimony of the Prosecutrix and the CDR of her mobile pone Ex. PW6/C. OTHER GROUNDS:
168. Ld. Defence Counsel also assails the case of the Prosecution on the ground that Prosecutrix was admittedly assisted by various lawyers since the lodging of FIR and till her deposition before the court and that her testimony is tutored and liable to be rejected. Ld. Defence Counsel also contended that it has been clearly brought out from her cross examination that Prosecutrix was doing the work of prostitution in Malviya Nagar and argued that even after shifting to Wazirabad, she continued to do this work and falsely implicated the Accused in this regard.
169. I have gone through the evidence in its totality. The argument of Defence that since Prosecutrix was doing the work of prostitution, she has falsely implicated Accused in this regard deserves to be rejected outrightly. The DNA report, as aforesaid has clearly established that DNA of the Accused tallied with the DNA of the Prosecutrix lifted from her vaginal secretion and cervical swabs. It is not the claim of the Accused that Prosecutrix entered into sexual relations with Accused persons voluntarily, nor the Accused could have taken this plea in their Defence, in view of the presumption under Section 114A Indian Evidence Act, this being a case of gang rape. There is thus, no other possible explanation for presence of DNA of the Accused in the vaginal secretion and cervical swabs of Prosecutrix except that the claim of the Prosecutrix is true and correct.
170. Further, even it is accepted that Prosecutrix was doing the work of prostitution, in view of her claim that Accused established sexual relations with her without her consent, the same has to be accepted by virtue of presumption under Section 114A Indian Evidence Act and the mere fact that she was working as prostitute does not in any manner confer any right whatsoever upon the Accused to violate her in any manner. It may also be noted that PW1 brought out in her cross examination that she was working as Sex Worker before shifting to Wazirabad, and not thereafter.
171. I also find no force in the contentions of Defence that since there is no testimony of Prosecutrix with regard to taking of her blood sample, claim of the Prosecution that her blood sample was taken during the course of investigation is false.
172. The contention of the Defence that Prosecution has failed to complete the chain of taking of exhibits from malkhana to FSL by not examining Ct. Anil is also liable to be rejected considering the fact that there is sufficient evidence on record to establish that sealed exhibits duly deposited in malkhana vide entries proved on record by MHC[M] PW25 HC Sunil Kumar were the same exhibits which were deposited in FSL. The reliance placed by Defence on the judgment of Giri Raj Vs State reported as Crl. A. No. 101/93 DOD 10.12.1999 is apparently misplaced since the facts of the present case are completely different from the facts of the case cited by the Defence which apparently was case of NDPS. Moreover, in the present case, there is sufficient evidence to establish that sealed exhibits from the malkhana are the same exhibits which were opened by the FSL expert and analyzed and despite lengthy cross examination by PW26 Dr. Dhruv Sharma and MHC[M] PW25 HC Sunil Kumar their testimonies to this effect remained unrebutted. Non examination of Ct. Anil, thus cannot be said to be fatal to the case of the Prosecution.
173. From the above discussion and the evidence on record, it thus stands proved that all the above named four accused persons namely Deepak, Praveen, Vikas and Ashok abducted the prosecutrix 'SJ' on 01.12.2012 and thereafter, committed rape upon her. The prosecutrix 'SJ' also deposed about beatings given to her by the above named accused and the same also stands corroborated by way of her medical record duly proved on record. Prosecutrix 'SJ' also deposed that she found upon regaining consciousness, that she was not having her belongings with her. Prosecution has also been able to establish recovery of mobile phone of prosecutrix make Nokia 5230 from possession of accused at the instance of accused Ashok, other belongings of prosecutrix i.e. purse and its contents belonging to prosecutrix at the instance of accused Vikas from place of occurrence, thus, thereby establishing that above named accused persons committed offence under Section 366/34 and 376 (2) (g) and 392/34 IPC. Besides this, from the evidence on record and above discussion, it has also been proved that accused Ashok, Vikas and Praveen committed offence punishable under Section 411 IPC.
174. Accordingly, all the Accused persons namely Deepak, Praveen, Ashok and Vikas are hereby convicted for offences punishable under Section 366/34 and 376 (2) (g) and 392/34 IPC. In addition thereto, Accused Ashok, Vikas and Praveen are also convicted for offence punishable under Section 411 IPC.
175. Let them be heard on the point of sentence.
Announced in the Open Court on 01.11.2014 (Kaveri Baweja) Additional Sessions Judge Special FTC2 (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions Judge Special FTC - 2 (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 57/2013
Unique ID No. : 02401R0109742013
State versus 1] Deepak
S/o Sh. Ajab Singh
R/o H. No. 43, Gali No. 1, Village
Jagatpur, Delhi
2] Praveen @ Lallu
S/o Sh. Ashok
R/o Gali No. 4, Village Jagatpur,
Delhi
3] Vikas @ Vicky
S/o Sh. Jai Singh
R/o Gali No. 4, Village Jagatpur,
Delhi
4] Ashok Ekka
S/o Sh. Edmond Ekka
R/o Gali No. 9, near Pusta,
Village Wazirabad, Delhi
Case arising out of:
FIR No. : 267/2012
Police Station : Timarpur
Under Section : 376 (2)(g)/365/392/411/34 IPC
Judgment pronounced on : 01.11.2014
ORDER ON SENTENCE
1. Vide judgment dated 01.11.2014, all the Accused persons namely Deepak, Praveen, Ashok and Vikas have been convicted for offences punishable under Section 366/34 and 376 (2) (g) and 392/34 IPC. In addition thereto, Accused Ashok, Vikas and Praveen are also convicted for offence punishable under Section 411 IPC.
2. Learned counsel for all the convicts submitted that there are several mitigating factors which may be considered and the quantum of punishment be reduced to lesser than the minimum prescribed under the Statute. It was highlighted by learned defence counsel for the above named convicts that the Prosecutrix in the present case was admittedly not a minor. It is also part of record that she had an abortion before the incident and she was also staying in India illegally. It was further contended that it has also come on record during the crossexamination that she was working as a sex worker.
3. Learned counsel for all the convicts further submitted that the all the above named convicts belong to respectable families and have clean antecedents. It was submitted that convict Deepak is aged about 26 years of age, married and having a younger married sister and old aged parents to support. With respect to the convict Vikas, it is contended that he is about 28 years of age having two brothers and two sisters besides aged parents. convict Praveen is stated to be about 28 years of age, married having two children and old aged parents to support, whereas convict Ashok Ekka is stated to be about 21 years of age.
4. It is submitted that the aforesaid factors may be kept in mind and lesser punishment may be awarded to the above named convicts in exercise of the powers conferred by the proviso under Section 376(2)(g) IPC.
5. On the other hand, learned Addl. PP argued that all the convicts be awarded maximum prescribed punishment keeping in mind that they have been found guilty of gang rape of the victim besides committing robbery of her belongings by giving beatings to her while committing the aforesaid offences. It was also argued that the recovery of the articles belonging to the victim has been effected at the instance of the above named convicts and as such there is no ground for any leniency in their favour.
6. I have considered the rival submissions on the point of sentence. It is apparent on going through the record of the case that the victim in the present case was a foreigner i.e. a refugee from Rwanda who was subjected to a henious offence of gang rape by the above named convicts. They also, in the process, gave brutal beatings to the victim and robbed her of her belongings. The submissions made by learned counsel for all the convicts do not, in my opinion, constitute any reason to award punishment lesser than the minimum prescribed under the Statute as the same cannot be said to be mitigating factors in the facts of the case. It may be reiterated that simply because the victim was working as a sex worker before the incident in question, does not confer any right upon anyone to violate her dignity or to rob her and can certainly not be a ground to award lesser than the minimum prescribed punishment.
7. In these circumstances, upon considering the totality of facts of the case, all the convicts viz., Deepak, Praveen, Ashok and Vikas are hereby sentenced as under :
i) For the offence punishable under Section 366/34 IPC, all the above named convicts are directed to undergo Rigorous Imprisonment for a period of 10 years, in addition to payment of fine of Rs.5000/ each.
In default of payment of fine, they shall undergo Simple Imprisonment for 02 years.
ii) For the offence punishable under Section 376(2)(g) IPC, all the above named convicts are directed to undergo Rigorous Imprisonment for a period of 10 years, in addition to payment of fine of Rs.5000/ each. In default of payment of fine, they shall undergo Simple Imprisonment for 02 years.
iii) For the offence punishable under Section 392/34 IPC, all the above named convicts are directed to undergo Rigorous Imprisonment for a period of 07 years, in addition to payment of fine of Rs.4000/ each. In default of payment of fine, they shall undergo Simple Imprisonment for 01 year.
In addition thereto, Accused Ashok, Vikas and Praveen are also directed to undergo Rigorous Imprisonment for a period of 03 years in addition to payment of fine of Rs.1000/ each for the offence punishable under Section 411 IPC. In default of payment of fine, they shall undergo Simple Imprisonment for 06 months.
8. All the aforesaid sentences shall run concurrently. Needless to add that all the convicts shall be entitled to the benefit of Section 428 Cr.PC.
9. The fine as imposed on the above named convicts totalling Rs.59,000/, upon being deposited, is directed to be released to the Prosecutrix/victim by way of compensation.
10. I also recommend payment of further adequate compensation to the victim in the present case as per provisions of Section 357A CrPC. The quantum of compensation to be awarded under Victim Compensation Scheme shall be decided by Delhi Legal Aid Services in terms of provision under Section 357A CrPC. Accordingly, it is directed that copy of this judgment and order be sent to Secretary DLSA, Central District for necessary action.
11. Copy of this judgment and order of sentence be also supplied to above named convicts free of cost.
12. File be consigned to Record Room.
(Kaveri Baweja) Additional Sessions JudgeSFTC2 (Central) Tis Hazari Courts: Delhi.