1. Rajinder @ Raju vs State Of Hp Decided On on 16 February, 2017

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Delhi District Court

1. Rajinder @ Raju vs State Of Hp Decided On on 16 February, 2017

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                IN THE COURT OF MS.SHAIL JAIN,
                  ADDITIONAL SESSIONS JUDGE 
                (SPECIAL FAST TRACK COURT)01,
                WEST, TIS HAZARI COURTS, DELHI

SC NO.  :  76/13

STATE 

versus

1.

Pushpinder son of Sh Nanak Yadav r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

2. Shri Kant son of Amar Singh r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

3. Sanjay son of Sh Gyani r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

4. Gautam son of Dharamvir r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

5. Sudhir @ Tony son of Bhodey Singh r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

6. Little son of Jai vir

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r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

7. Anil son of Raivir r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

8. Pushpinder @ Tuiya (Since deceased) son of Mahipal r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

9. Omkar @ Sharad son of Nepal Singh r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

10. Shashi Kant @ Kale son of Vedpal Singh r/o Village Garhi Chokhandi PS Sector 58, Gautam Budh Nagar.

FIR No. : 11/09 Offence U/S : 342/376 (2)

(g)/395/397/412 IPC Police Station :Sector 39, Noida Transferred to this court as per the order of Hon'ble Supreme Court on: 28/02/2012 DATE OF JUDGMENT:16/02/2017 JUDGMENT

1. Present FIR has been lodged against present accused persons on the complaint of the complainant Sh Amit Panwar

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on the grounds that in the year 2009, he along with the prosecutrix was studying at Amity University, Sector 125, Noida, UP. On 05/01/2009 he along with prosecutrix (name mentioned in file but withheld to protect her identity) had gone to GIP mall for purchasing some stationery. After buying some stationery and eatables from GIP Mall, he along with the prosecutrix was coming back to their homes in car ie WaganR No.DL3CZ7188. When they reached near Ganda Nala, 23 motorcycles overtook their car and got stopped their vehicle from front side of the car. They were having cricket bats and bricks in their hands. Out of those boys, four boys sat in their car and they gave beatings to complainant and prosecutrix with bats and bricks. 23 boys, who had come inside the car, pushed the complainant and prosecutrix at the back seat of the car. One of the boy started driving the car and two boys were sitting at the back seat, where complainant and prosecutrix were made to sit. Those boys had taken the car in the jungle. In jungle at isolated place, accused persons took out the complainant from car and started giving beatings to him and all of them had committed gang rape upon the prosecutrix. In the mean time one motorcycle bearing no. UP 16 L4619 came at the spot and he had some talks with the other boys. Those boys took the mobile phone and wrist watch of the complainant. After causing hurt to the complainant and prosecutrix they all left that place. On the

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same night, prosecutrix and complainant reached the PS Sector 39 Noida and lodged the complaint in respect to commission of gang rape against the prosecutrix & decoity of their personal belonging and thus FIR No 11/09 was lodged at PS Sector 39 under section 395/397/412/376/342/34 IPC.

2. After hearing arguments, vide order dated 23/11/2009, charge for offences under section 342/376 (2)(g)/395/397 IPC was framed against the accused persons ie Shri kant, Sudhir, Pushpinder, Little, Shashikant, Gautam, Pushpinder @ Tuiya, Sanjay, Anil, Omkar @ Sharad. Charge u/s 412 IPC was framed against the accused Pushpinder, Shashikant, Anil and Omkar, to which they pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution has examined 22 witnesses. Out of 22 prosecution witnesses, PW1 and PW2 were examined before the courts at Noida and while PW3, complainant Mr Amit Panwar was being examined, on his complaint before Hon'ble Supreme Court of the threats being extended to him by accused persons, case was transferred to Delhi and was assigned to this court in the year 2012. Rest all witnesses were examined in Delhi courts.

4. PW1 Dr Anshu Gupta has medically examined the prosecutrix.

5. PW2 is Dr Pramod Kumar, who has examined slides of the prosecutrix.

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6. PW3 Sh Amit Panwar is the complainant. He has deposed that on 05/01/2009 after attending the classes of MBA at Amity University, he along with the prosecutrix had gone to GIP Mall for buying some stationery. When they reached near main road, 23 motorcycles, on which 7 persons were riding, overtook their car near Ganda Nala and out of them four boys entered in the car and they pushed the complainant and prosecutrix to sit at the back seat of the car and one boy had driven the car to the jungle. When they reached in jungle, some other boys had also come and they took the car of prosecutrix in field and committed gang rape upon the prosecutrix in her Wagon car. When they objected, those boys gave beatings to them and threatened them at the point of knife. During this incident, those boys looted wrist watch and mobile phone and purse of the complainant. Those boys also took the mobile phone, gold ring, ATM Card of the prosecutrix. After this incident, those boys left the complainant along with prosecutrix at isolated place and threatened them of dire consequences. Somehow they managed to come to the house of the complainant in their car and thereafter present complaint was lodged by the complainant.

7. PW4 is the prosecutrix. The prosecutrix, as PW4, has deposed that on 05/01/2009 after finishing her classes, she along with her friend complainant went to GIP Mall in

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WagonR Car No. DL3DZ7188 for buying some stationery. There they purchased some stationery and some eatables. Thereafter they came out of the mall and she along with complainant started from there for going to their residence in the same car. Her friend was driving the car. When they reached on the road near nala, 34 motorcycle overtook their vehicle and they got stopped their vehicle. 23 boys came inside the car and pushed her and complainant at the back seat of the car. One of the boy started driving the car and 2 boys were sitting at the back seat, where they were made to sit. Those boys gave beatings to them. Accused persons had overpowered them and kept their hands over their eyes and mouth. They stopped the car in the middle of the jungle area. She noticed that vehicle was in the middle of field. Firstly they gave beatings to her and then to Amit (PW3). Thereafter accused persons had taken complainant out of the vehicle and she was made to sit on the front seat. By that time, 67 others persons also reached there. Accused persons had committed gang rape upon her. Thereafter accused persons made complainant to sit in the car. Thereafter they were taken to some other place. In the mean time one motorcyclist passed through their vehicle and due to fear accused persons get down from the car and uttered some words to that person. Accused persons had taken her mobile phone, one gold ring, ATM card and one fortune card. She along with complainant

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went at the house of complainant. Her family members also reached there. She narrated the incident to all of them. Thereafter they lodged the complaint at PS Sector 39, Noida. On 07/01/2009, she was taken to hospital and Xray of prosecutrix and complainant was conducted. On 07/01/2009 when she along with complainant had gone to hospital, she and complainant had seen five accused persons in the custody of police. She had identified them to be the same persons who had committed rape upon her. On 10/01/2009 accused Omkar, Golu and Little were arrested. Accused Omkar was the person who was driving the car and had taken her mobile phone from her. Her mobile phone and wrist watch of complainant were recovered from the possession of accused Omkar. Her gold ring and mobile phone of complainant was recovered from other two accused persons. On 09/02/2009, her statement u/s 164 Cr.P.C was recorded by Ld Magistrate which is Ex.PW4/B. Witness has further deposed that even after registration of the case, she was threatened by accused persons.

8. PW5 Ct Saroj Sharma took the prosecutrix for medical examination to Govt hospital in Sector39, Noida. Original MLC was handed over to her which she later on handed over to the IO. The clothes of the prosecutrix were seized in the PS as same could not be given to the doctor as at that time she did not have extra clothes.

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9. PW6 Ct Kripal Giri is the duty officer. He has deposed that on 06/01/2009, on the complaint of complainant, FIR (Ex.PW6/A) was recorded by him.

10.PW7 HC Satya Pal Singh has deposed that on 07.01.2009, he was working as MHC(M) of PS Sector 39 Noida on that day. SHO of PS sector 39 Mr. Anil Kumar Sumaniya deposited one cricket bet, one helmet and one motor cycle bearing registration no. DL3SAW2877 make Bajaj. The aforesaid case property was deposited vide serial no. 10 of Malkhana register. Photocopy of the same is Ex. PW7/A. On 08.01.09 three sealed pullandas and one piece of napkin were deposited by SHO Anil Kumr Sumaniya vide serial no. 13. Photocopy of the same is Ex. PW7/B . On 10.01.09 one mobile phone make Nokia model no. 6681 of black colour with IMEI no. 351886012557135, one wrist watch with steel chain, one sealed pullanda containing ring of yellow metal, one mobile phone make Soni Ericson K7091 with IMEI No. 352206016662991, one card, one helmet of black colour and one broken wicket from bottom were deposited by the SHO in the malkhna vide serial no. 16. Photocopy of the same is Ex. PW7/C . On 14.01.2009 one motor cycle no,. UP16B0870 of black colour, one other motor cycle bearing registration no. UP14AM8608 of black colour and third motor cycle bearing registration no. UP16D4473, one sealed envelope containing exhibits of prosecutrix, one cricket bat, two wooden wickets,

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one motor cycle bearing registration no. UP16L4619 make Pulsar were deposited by SHO vide serial no. 18. Photocopy of same is Ex. PW7/D. On 14.01.2009 three sealed pullandas and one piece of napkin & exhibits i.e clothes of accused persons contained in five pullandas were sent to FSL at Agra through Ct. Rambir Singh. Photocopy of the register mentioning the aforesaid facts is Ex. PW7/E. On 03.08.2010 one pullanda and FSL result were received in the malkhana brought by Ct. Rambir Singh who collected the same from police line at Gautam Budh Nagar. The entry to this effect in the malkhana register has been made at serial no. 14. Photocopy of same is Ex. PW7/F. Motor cycle no. UP14AM 8608 was released on superdari on 20.01.2011 in favour of registered owner Dharmbir Singh. Motor cycle no UP16B 0870 was released on 21.01.2011 in favour of Ajay Pal Singh registered owner. Motor cycle no UP16D4473 was released on 30.01.2011 in favour of Bintu registered owner. Motor cycle no UP 16L4619 was released on 06.08.2010 in favour of Nank Chand registered owner.

11.PW8 Ct Daya Nand had joined the investigation with the IO on 11/01/2009. He has deposed that on 11.01.2009 he along with SHO Anil Samania along with other police staff were on patrolling duty in the area of sector 39. A secret information was received to the SHO from informer that three accused persons involved in the present case namely Omkar,

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Shashi Kant and Golu are standing under Mahamaya Flyover. On receipt of said information, the police team reached there. The informer pointed out towards aforesaid boys from some distance. Thereafter, informer left from there and the police team apprehended aforesaid accused persons. They were interrogated and they disclosed their names, parentage and addresses. Personal Search of all the three accused persons was conducted. From the possession of accused Omkar, one wrist watch with steel chain and one mobile phone Soni Ericson were recovered. From the possession of accused Shashikant one ring of yellow metal was recovered from his pocket of pant. From the possession of accused Golu, one mobile phone make Nokia was recovered. The seizure memo of the aforesaid articles were prepared. The seizure memo of the recovery of aforesaid articles is "Pradash Kay7".

12. PW9 Ct Dinesh Kumar has joined the investigation of the present case on 06/01/2009 with the IO.

13. PW10 Ct Sarvesh has deposed that on 05/06.01.2009 it was around 1:30 am, two ladies and 45 other persons came in the PS. They informed about the incident of rape as well as decoity. One of them produced complaint to the SHO Inspector Anil Kumar Samania. On the said complaint, SHO got the case registered in the PS. The prosecutrix was sent to Govt. Hospital at Noida in the company of PCR officials as well as lady constable. Thereafter, he along with SHO, SSI

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Mahender Singh Badoria, SI Tej Jagan Nath, SI Rajesh Chaturvedi, Ct. Dinesh, Ct. Karamvir went to Govt. Hospital in Govt. Vehicle. In the hospital, SHO recorded statement of prosecutrix as well as one boy namely Amit Kumar. Prosecutrix was sent to PS Sec39, Noida in the company of lady Ct. Saroj. The remaining police team along with complainant Amit reached at GIP Mall, near Nallah near Sec 38A, Noida. At the aforesaid place SHO had prepared the site plan on the pointing out of complainant Amit Panwar. On 06.01.2009, at around 2:10 pm a secret information was received by SHO Inspector Anil Kumar Samania that 5 boys, who are involved in gang rape as well as dacoity in the present case are standing near Hindon Canal. Thereafter, all the police officials along with the secret informer reached at village Hoshiar Pur. The vehicle was stopped at a distance of about 200300 meters away from the place of secret information. After about 22.30 hours they returned back along with 5 accused persons namely Pushpender, Sanjay, Gautam, Srikant and Sudhir along with two motorcycles. One cricket bat & one wicket in unsealed condition and some weapons in sealed condition were also brought by the police team after recovery. At around 6:30 p.m. police team returned back to the PS. The witness has identified the accused Pushpender s/o Nanak Chand, Shashi Kant and Omkar. The witness has wrongly identified accused

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Shashikant as Sudhir and Omkar as Srikant.

14. PW11 HCP Rakesh Singh Rana has deposed that on 14.01.2009, three accused persons namely Pushpender, Srikant and Sudhir were produced in the PS by the PCR officials from the jail premises. They had confessed regarding getting recovery of weapons of offence used by them i.e. wickets and bats. At the direction of Inspector Anil Somania, a team was formed for the recovery of weapons used by the accused in the crime. SSI Mahender Singh was heading the team which was constituted for recovery of the weapons. The said team consisting of other members namely SI Pankaj Srivastav, Ct.Kirpalgiri and Ct. Mahesh, Ct. Driver Shoaib Ali and himself. The police team along with aforesaid three accused persons reached near Bank of Hindon Canal.

Two wickets and one bat were got recovered by the accused persons from the bushes near a Peepal tree. Accused Pushpender and Srikant got recovered one wicket each and accused Pushpender got recovered one bat also. The seizure memo of the aforesaid articles were prepared by the IO SSI Mahender Singh and seized the same through seizure memo exhibited as PW11/A .

15. PW12 SI Tej Jagannath Singh has joined the investigation on 06/01/09 & 10/01/09 with PW14 and PW21 and has stated in detail about the manner in which 5 accused persons namely Pushpinder, Sudhir, Srikant, Gautam and Sanjay

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Yadav were arrested on 06/01/09 and three accused persons namely Omkar, Shashi Kant and Golu were arrested at the instance of informer from Amarpali Chowk leading towards Greater Noida. From the possession of accused Omkar, one mobile phone make Nokia and one wrist watch was recovered, from accused Shashikant, one golden ring was recovered, from possession of accused Golu, one mobile make Sony Ericsson was recovered. The gold ring was kept in an empty match box and the same was converted into a sealed pullanda and seized by the IO.

16. PW13 SI Rajesh Chaturvedi has deposed that on 05.01.2009 on the intervening night of 5/6.01.2009 at about 1:30 AM one girl prosecutrix, one lady Ms. Vandana, Mr. Amit Pawar and some more persons came in the PS in a WagonR car with a Delhi bearing Registration No. 7188. They had a hand written application, which they had submitted in the PS, on which the present FIR was registered against unknown culprits. One motorcycle number was mentioned in the complaint as UP 16L 1649. Investigation was assigned to Inspector Anil Samanya, SHO. As prosecutrx and Mr. Amit Pawar were injured, PCR 20 was called and they were taken for their medical examination at District hospital, Noida. Ct. Saroj also accompanied with prosecutrix. SSI M. S. Bhadoria, SI Amit, SI T J Singh, Ct. Dinesh, Ct. Karambir, Ct. Sunil, Ct. Sarvesh and himself with Inspector Anil Samaniya went in a

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jeep to the hospital where Inspector Samaniya made inquiry and recorded the statements of prosecutrix and Mr. Amit Pawar. Thereafter, all of them went with Mr. Amit Pawar to the spot of incident, which was near GIP Mall from where the accused persons had kidnapped the prosecutrix and Mr. Amit Pawar. After inspection, the site plan was prepared by the Inspector Anil Samaniya. Thereafter, the police team with Mr. Amit Kumar went to the spot of incident, where the rape was committed ie., near Bahlolpur at Biru ka khet. The spot was inspected. The forensic team known as field unit was also called there. The papers napkins, bottles and other samples were lifted from the spot. On 06.01.2009 at about 2:15 PM a secret information was received by the IO that five culprits of the present case were standing near Garhi Chokhandi pusta. The police team ie., SSI M. S. Bhadoria, SI Amit, SI T J Singh, Ct. Dinesh, Ct. Karambir, Ct. Sunil, Ct. Sarvesh and himself with Inspector Anil Samaniya went there with secret informer. The informer pointed out five persons with two motorcycles standing at the pusta. Thereafter, the secret informer left the spot. The five persons, who were standing there tried to escape on seeing them but police team apprehended them at about 3:15 PM and arrested them. Their names were Pushpender, Sudhir, Sanjay, Gautam and another boy whose name Witness has stated as accused Pushpender S/o Mr. Nanak Chand . Witness has stated that he cannot identify the

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other accused persons as their appearance has changed since the time of arrest.

17. Witness has further deposed that all the five accused persons namely Pushpender, Sudhir, Sanjay, Gautam and Shri Kant were arrested in his presence vide personal search and recovery memo Mark PW13/A . A country made pistol of .

315 bore, two live cartridges and one motorcycle make Pulsar bearing no. UP 16L 1619 (although it should be 4619) were recovered from the possession of accused Pushpender. A country made pistol of .315 bore, one live cartridge and one motorcycle make Hero Honda were recovered from the possession of accused Sudhir. A country made pistol of 32 bore and one live cartridge of 32 bore were recovered from the possession of accused Shri Kant. A knife and a cricket bat were recovered from the possession of accused Sanjay. A knife and cricket stump were recovered from the possession of accused Gautam. All the recovered articles except for the motorcycles were sealed in separate pullandas by the IO as per the recovery. Five separate cases under the Arms Act were made against all the five accused persons. On 07.01.2009, another accused by the name of Little was arrested by some other police officers in the present case and was brought to the PS. He had prepared a memo regarding the recovery of the clothes, which accused Little was wearing at the time of rape of the prosecutrix, which was also signed by IO

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Inspector Anil Samaniya. The same is Ex. PW13/A. On 10.01.2009, he had joined the investigation again on the direction of the IO and both went to the Sector37, crossing (Chauraha), Noida where a secret information was received by the IO that three other culprits are present at Amarpali Chowk. He along with Inspector Anil Samaniya, SSI M S Bhadoria, SI Amit, SI T J Singh and two Constables took each other's personal search and nothing objectionable was recovered. On pointing by informer, they apprehended accused Omkar, Shashi Kant and Golu (who was a juvenile).

Their personal search was taken and during this time prosecutrix and Amit Pawar by chance also reached there. Both of them also identified the three accused who were apprehended by them to be the same persons who had committed the offence. One mobile phone make "Nokia" and one wrist watch make "Police" were recovered from accused Omkar. Prosecutrix told them that the mobile phone make "Nokia" belongs to her. Mr. Amit Panwar told them that the wrist watch make "Police" belonged to him. One ring of golden colour was recovered from the accused Shashi Kant. Ms. Ishani Chhabra told them that the ring belongs to her. One mobile phone make "Sony Ericcson" was recovered from the possession of accused Golu. Mr. Amit Pawar claimed that the same belongs to him. All the recovered articles were seized in separate pullandas which were seized and sealed by

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the IO. A seizure memo and arrest memo as well as the personal search memo was prepared. The Same was earlier exhibited as Pradarshak KA7, later exhibited as Ex. PW13/B. On 11.01.2009, Inspector Anil Samaniya received secret information that one more culprit is available at Sadar Pur pulia, Dadri Road. He along with Inspector Anil Samaniya, SSI M S Bhadoria, SI Amit, Ct. Dinesh and some more Constables they apprehended accused Pushpender @ Tuiyan and arrested him. On enquiry he admitted having committed the offence. He also stated that he can get one bat which was used in the commission of the offence, one helmet and one payara card of prosecurix recovered. He led them to Hindon Pusta and got all the above articles recovered from the bushes. The same were sealed and seized separately. Memo regarding the recovery and arrest was prepared. The same is exhibited as Ex. PW13/C.

18. PW14 SI Mahender Singh Bhaduria has joined the investigation with PW12, PW13 and PW21 and has stated in detail about the same.

19. PW15 Dr M S M Khan has deposed that on 06.01.2009 he had medically examined Mr. Amit Pawar . He had prepared his MLC Ex.PW15/A.

20. PW16 Mr Anil Kumar Sone, Scientific Officer, FSL Agra has deposed that on 15.01.2009 one sealed parcel duly sealed with the seal of MONOGRAM + UPP along with sample seal

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was received in office of Agra brought by Ct. Ramvir Singh CP53. The seal of the parcel was tallied with the sample seal and thereafter the sealed bundle was opened. Same was found containing six sealed bundles duly sealed with the seal of MONOGRAM + UPP. The contents were examined vide his detailed report dated 24.01.2009 is Ex.PW16/A.

21.PW17 Dr A K Bapuly, Professional Director, FSL, Orissa has proved his report as Ex.PW17/A, 91 photographs of the exhibits were proved as Ex.PW17/A1 to Ex.PW17/A91.

22.PW18 Ms Vandana Sharma is elder sister of the prosecutrix. She has deposed on the same lines as deposed by prosecutrix.

23.PW19 Ct Ramvir Singh has deposed that on 14.01.2009 after receiving the exhibits of the present case from malkhana PS Sector 39 , Noida, he had deposited the same in office of FSL, Agra on 15.01.2009. On 16.01.2009 he went to one laboratory at Lucknow with sealed envelop having some documents for the analysis of experts. Those documents were checked in the laboratory and certain objections were made and returned to him. After about one month of this, the result from FSL, Agra was received in PS Sector 39, Noida and he again went to the office of FSL to collect the exhibits and brought back the same to PS Sector 39, Noida. On 21.02.2009 as per the instructions of IO, he went to the CJM Court, Noida with all the exhibits and related documents which were brought by him from FSL, Agra. In CJM Court,

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IO/Inspector Anil Samania along with other staff members were present. He was handed over one thermocol box having some ice packs along with some exhibits for taking the same to the office of FSL, Ranchi for expert opinion. The departure entry was made in the general diary of PS Sector 39, PS Noida and same is Ex. PW19/B. The result from the office of FSL, Ranchi, Jharkhand was received in the PS by post and he had collected the exhibits from the office of FSL, Ranchi and deposited the same back in PS Sector 39, Noida.

24.PW20 Mr Trilok Pal Singh, ACJM has recorded the statement of the complainant and prosecutrix under section 164 Cr.P.C and proved the same as Ex.KA and Ex.PW4/B.

25.PW21 Inspector Anil Samaniya has deposed that on 05.01.2009 on the intervening night of 05/06.1.2009 at about 1.35 a.m, prosecutrix along with her sister Ms. Vandana, her friend Mr. Amit Panwar and 56 persons came to the PS in a Wagon R car bearing registration no. DL 3CZ 7188. Mr. Amit Panwar had given a complaint, on which the FIR was registered. The said complaint is Ex.3 (pardarshak 3) and the FIR is as Ex.PW 6/A. There was an information in the complaint regarding the gang rape committed upon prosecutrix and there were allegations of loot and beatings also. Prosecutrix was having injury marks on her face and other visible body parts including face, neck, chest etc. Mr. Amit Kumar had also injuries on his person. The copy of FIR

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and complaint along with general diary was handed over to him by Ct./Clerk Kirpal Giri for investigation of the case. After registration of the case, prosecutrix was sent to District Hospital, Gautam Budh Nagar for her medical examination along with L/Ct. Saroj Sharma. Mr. Amit Kumar was also sent to District hospital for his medical examination. Thereafter, he along with other police staff including SSI Mahender Singh Badoria, SI Rajesh Chaturvedi, SI Amit Kumar, SI T.J Singh, Ct. Dinesh, Ct. Satish, Ct. Sarvesh etc. went to the district hospital, Noida in official vehicle. He met prosecutrix and Mr. Amit in the hospital and recorded their statements. He had collected the MLCs of both the injured persons. At the instance of the complainant Mr. Amit Panwar, site plan was prepared by him, which is Ex. PW21/A. In the PS prosecutrix along with her sister Ms. Vandana was present. In the hospital, clothes of the prosecutrix, which she was wearing at the time of incident could not be seized as the alternative clothings could not be arranged in the hospital. In the PS since her other clothes had been arranged so he had seized her clothes, prepared pullanda and sealed the same with the seal of AS. The seizure memo Ex. PW4/C in this regard was prepared by Ct./Clerk Kirpal Giri on his instructions. The abovesaid pullanda was deposited in the malkhana. On 06.01.2009 he along with Mr. Amit and other police staff went to Jungle area of Village Bahlolpur

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Near Hindon River Bank, where the place of occurrence as Viru Ka Khet was pointed out by Mr. Amit and he had prepared the site plan which is Ex. PW21/B. Field Unit Team headed by incharge SI Satya Parkash Pandey was called at the spot. The place of occurrence was inspected by Field Unit Team and some tissue papers, empty small bottles of plastic, one card of car parking and one plastic glass of coca cola were recovered from the spot. The abovesaid things were taken into one pullanda and sealed with the seal of AS and seized vide seizure memo Ex. PW14/B. Thereafter, the soil from the field, which was a place of occurrence was also lifted by Field Unit Team and it was kept in a plastic container sealed with the seal of AS and seized vide seizure memo Ex. PW14/A. On the same day i.e on 06.01.2009 at about 2.30 p.m, secret information was received in the PS that five persons involved in the present case were present at Garhi Chokhandi Hindon river Pusta ke kinre, under the kikkar tree and they were having possession of illegal weapons waiting for their other friends. He along with the other police staff accompanied by secret informer proceeded for the abovesaid place from the P.S. Thereafter, they proceeded towards the spot, where those persons were supposed to be present. At a distance of about 200 steps away from that place, they left the official vehicle along with the driver and reached the spot on foot & noticed that five

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boys were present having two motorcycles under kikkar tree and they were pointed out by the secret informer being the same persons wanted in this case. They overpowered those five boys and apprehended them. They interrogated them and ascertained their names and addresses. One motorcycle at the spot was bearing registration no. UP 16 L 4619 (make Pulsar) which was mentioned in the FIR. The boy riding the above said motorcycle and was going to start it told his name as Mr. Pushpender s/o Mr. Nanak Yadav. Personal search of accused Pushpender was taken and one country made pistol of .315 bore was recovered from the right dub of the pant. Two live cartridges were also recovered from the right pocket of the pant of Mr. Pushpender. The country made pistol and both the live cartridges were taken into pullanda and sealed with the seal of AS. One boy who was riding Hero Honda motorcycle bearing registration no UP 16 V 5540 and was going to start it told his name as Sudhir. Personal search of Mr. Sudhir was taken and one country made pistol of .315 bore was recovered from the right dub of the pant. One live cartridge was also recovered from the pocket of his pant. The country made pistol and cartridge were taken into pullanda and sealed with the seal of AS. The name of third boy was revealed as Shree Kant R/o Garhi Chokhandi. Search of Mr. Shree Kant was taken and one country made pistol of .32 bore was recovered from the right dub of the pant and one

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live cartridge was also recovered from the left pocket. The country made pistol and cartridge were taken into pullanda and sealed with the seal of AS. The name of fourth boy was revealed as Sanjay Yadav R/o Garhi Chokhandi. Search of Mr. Sanjay Yadav was taken and one knife was recovered from the pocket of his pant. He was also found in possession of one cricket bat. The knife was taken into pullanda and sealed with the seal of AS and chitbandi (affixing of label) was done on the cricket bat mentioning the particulars of the case and name of the accused. The name of fifth boy was revealed as Mr. Gautam R/o Garhi Chokhandi. Search of Mr. Gautam was taken and one knife was recovered from the pocket of his pant. He was also found in possession of one cricket stump (wicket). The knife was taken into pullanda and sealed with the seal of AS and chitbandi (affixing of label) was done on the cricket stump (wicket) mentioning the particulars of the case and name of the accused. All the abovesaid pullandas were seized vide seizure memo Ex. PW13/A. Both accused Pushpender and Sudhir could not show the documentary proof of the ownership of the motorcycles which were in their possession. Even they were unable to show any license of the weapons recovered from their possession. He had seized both the above motorcycle vide same seizure memo Ex. PW13/A. The abovesaid five accused persons had confessed their guilt and also disclosed the names of their other

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associates involved in the commission of offence in the present case. Thereafter, he had arrested all the five accused persons namely Mr. Pushpender s/o Mr. Nanak Yadav, Mr. Sudhir, Mr. Shree Kant, Mr. Sanjay Yadav and Mr. Gautam disclosing them the grounds of their arrest vide arrest memos Ex.PW 14/F, Ex. PW14/G, Ex. PW14/E,Ex. PW14/C and Ex. PW14/D respectively. All the five accused persons during investigation had disclosed that they had used the recovered country made pistols, knife, cricket bat and cricket stump in beating the prosecutrix and the complainant. All the five accused persons were sent for their medical examination at District Hospital, Noida.

26. On 06.01.2009 complainant Mr. Amit Panwar came to the PS in the evening and told him that he wanted to tell the truth.

He informed him that place of abduction which was near GIP mall was not a correct place as he was scared of his family members at that time. Thereafter, he took him and police team to the road between Village Garhi Chokhandi and Village Prathla Khanjarpur and pointed towards dead end of the road near Hindon river stating that he alongwith prosecutrix, his girl friend were at that place in Wagon R car when the culprits had abducted them and taken them to Jungle area of Village Bahlolpur Near Hindon River Bank, where the prosecutrix had been gang raped by them and he as well as the prosecutrix had been beaten by the culprits.

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Thereafter, at the instance of Mr.Amit Panwar , witness had prepared site plan, which is Ex.PW21/E. On 07.1.2009 at about 12.30 p.m prosecutrix along with complainant Mr. Amit Panwar came to P.S and submitted an application signed by both of them stating that all the five accused persons namely Mr. Pushpender s/o Mr. Nanak Yadav, Mr. Sudhir, Mr. Shree Kant, Mr. Sanjay Yadav and Mr. Gautam were seen and identified by prosecutrix and Mr. Amit Panwar at crossing District Hospital when the accused persons were in custody of the police and being taken to be produced before the Court. The said application is Ex. 4. Regarding this fact he had mentioned in the General Diary vide GD no. 22 dated 07.01.2009 and the official noting for this is on Ex.4 at point X. On 07.01.2009 SSI Mahender Singh Badhuria had arrested accused Little. From the possession of accused Little, one cricket bat and one helmet was recovered. The statement of accused Little was recorded by him, which is Ex. PW21/EA.

27. Witness has further deposed that he had seized the clothes of the accused Little in PS which he was wearing at the time of incident & were seized vide seizure memo Ex.

PW13/A. All the five accused persons refused to get their confessional statements recorded. He had also moved an application on 07.01.2009 before the Court seeking permission to take the finger prints and thumb impressions of the accused persons which was allowed by the Court. The

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application is Ex. PW21/E3. The order dated 07.01.2009 on the application is Ex. PW21/F and the accused persons were directed to appear in the Court for giving their fingerprints and thumb impressions. On 08.01.2009 two different teams of Forensic Experts from Lucknow and Agra headed by Mr. A.K Mittal and Mr. Rajiv Paliwal were called to PS, Sector 39 Noida. Field Unit of District Gautam Budh Nagar was also called to the PS. The Field Unit of District Noida had inspected the Wagon R Car on 06.01.2009 and lifted some fingerprints from the car. The said Wagor R Car was left under the supervision of police in the PS on

06.01.2009 and was parked in the PS since then as the offence of rape took place in this car. On 08.01.2009 the teams of forensic expert and team of field Unit along with him and other police team visited the spot i.e place of occurrence of rape at Viru Ka Khet, Behlolpur. The said place was inspected by the experts. Some used tissue papers (napkins)and some used papers (vasi kagaz) were recovered from the spot and all these papers were wrapped in a polythene and thereafter it was kept in a cloth and a pullanda was prepared which was sealed with the seal of AS and seized vide seizure memo Ex. PW14/J. Thereafter, they came back to PS and the Forensic expert of Agra and Lucknow inspected the Wagon R car and from the car some used napkins, soil along with grass, piece of mat, piece of seat

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cover, piece of floor mat, few hair and one overcoat were recovered. All the above said things were taken into possession and seized by him vide seizure memo Ex. PW14/I. On 08.01.2009 at about 2.30 p.m he along with other police team left the PS in search of remaining accused persons and were present at crossing Sector 37 Police Post Noida where the secret information was received that accused Anil wanted in the present case was present near bus stand on the road going towards Morna bus stand at Sector 37 Noida. On receipt of this information police team along with secret informer reached there and accused Anil was pointed out by secret informer. Accused Anil was apprehended by police team and after interrogation, accused Anil was arrested vide arrest memo Ex. PW14/N. He disclosed the names of other co accused persons. He further disclosed that he could get recovered the ATM card belonging to the prosecutrix. Thereafter, accused took them to his house in village Garhi Chokhandi. His brother namely Devender was present in the house at this time and accused Anil got recovered one ATM card of SBI from under the bed sheet spread on the cot lying in the room of the first floor of his house. The said ATM card was kept in a cloth and pullanda was prepared, which was sealed with the seal of AS and seized vide seizure memo which is Ex.PW14/K.

28.On 10.01.2009 he along with other police officials left the

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PS at about 12.30 p.m in search of the remaining accused persons. When they reached the crossing of Sector 37 Noida, secret information was received that three accused persons wanted in the present case were present at Amarpali Chowk near Mahamaya Fly Over and they were preparing to go somewhere. On the identification of secret informer, all the three boys were apprehended by them and their names were revealed as Omkar Yadav, Mr. Shashikant and Mr. Golu Jatav. Upon search of accused Omkar Yadav one mobile Phone make Nokia was recovered from one pocket of his pant and from another pocket of pant one wrist watch make 'Police' was recovered. Upon search of accused Shashikant one ring of golden colour was recovered from pocket of his pant. From the possession of accused Golu Jatav one mobile phone make Sony Ericssion was recovered from the pocket of his pant. In the meantime prosecutrix and complainant Mr. Amit Panwar reached the place. They both identified all the abovesaid three accused persons namely Mr. Omkar Yadav, Mr. Shashikant and Mr. Golu Jatav. Mr. Amit Panwar identified mobile phone make Sony Ercission and wrist watch belonging to him and prosecutrix identified mobile phone make Nokia and ring of golden colour as belonging to her. All the above said persons namely Mr. Omkar Yadav, Mr. Shashikant and Mr. Golu Jatav were arrested vide arrest memo Ex. PW14/M. Accused Golu Jatav is facing trial before

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the Juvenile Justice Board at Merrut. The articles recovered from the possession of accused Mr. Omkar Yadav were seized vide seizure memo Ex. PW13/B. The ring of golden colour had been kept in the match box which in turn was kept in white cloth and its pullanda was prepared and sealed with the seal of AS. On 11.01.2009 he along with the police team left the PS in search of remaining accused and then when they reached near Sai Baba Mandir, Sector 40, Noida they received secret information that one accused wanted in the present case was standing at Sadar Pur Pulia, Dadri Road. They all the police officials including secret informer took search of each other and it was confirmed that none of them were in possession of any objectionable material or any illegal weapon. Thereafter, they reached near Sadar Pur Pulia where one boy was found present who was identified by secret informer. They apprehended that boy and upon interrogation his name was revealed as Mr. Pushpender @ Tuiyan R/o Garhi Chokhandi. Upon interrogation he confessed about the crime of the present case and they arrested him vide arrest memo Ex. PW14/N. On 06.01.2009 when accused Pushpender son of Nanak Yadav was arrested, he was wearing the same clothes which were worn by him at the time of incident. Therefore, he had seized his clothes & converted the same into pullanda and sealed with the seal of AS and prepared seizure memo Ex. PW21/H. The FSL team

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of experts from Lucknow was called and thumb impressions and finger prints of all the accused persons were taken in the court room in the presence of Ld. CJM. Same were kept in a sealed cover and sealed with the seal of Ld. CJM. On the same day he had moved an application Ex. PW21/I requesting the Court for taking the blood sample and hair sample of all the eleven accused persons for DNA analysis. His application was allowed by Ld. CJM vide order dated 18.02.2009. The same is Ex. PW21/J. After completion of investigation, charge sheet was filed in the court.

29.PW22 Ms Bimla Singh, Finger Print expert has proved her report as Ex.PW22/E. She has proved the negatives of the photographs of the chance prints and sample finger prints as Ex.PW22/F, Ex.PW22/G1 to Ex.PW22/G65.

30. I have heard arguments from Ld counsels for accused persons as well as from Ms Neelam Narang, Special P.P for the State. On behalf of the accused Little and Sanjay, Sh Rashid Hashmi Advocate had argued the matter. Sh K.K. Manon, Sr. Advocate had argued the matter on behalf of accused Pushpinder, Srikant and Sudhir. On behalf of accused Anil and Gautam, arguments have been advanced by Sh D.B. Yadav Advocate. Sh R.S. Malik, Ld counsel has argued the matter on behalf of accused Omkar.

31.In the present case, total 11 accused persons ie. Accused Pushpinder, Srikant, Sanjay, Gautam, Sudhir, Little, Anil,

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Pushpinder @ Tuiyan, Omkar, Shashikant and Golu were arrested. Accused Golu was juvenile at the time of commission of offence, hence proceedings against accused Golu was separated before CJM Noida. As per the order of Hon'ble Supreme Court of India dated 03/02/2012, trial of the case was transferred to Delhi. During proceedings of the case, accused Pushpinder @ Tuiyan had expired and proceedings against accused Pushpinder @ Tuiyan were abated. Therefore trial was faced by 9 accused persons.

32. It is argued by Ms Neelam Narang, Special Public Prosecutor on behalf of the State that the complaint was lodged immediately after the incident ie on the intervening night of 5/06/01/09 by the complainant (PW3), who was the sole eye witness to the incident apart from the prosecutrix. It was further submitted by Ms Neelam Narang, Ld Special P.P that PW3 complainant and PW4 prosecutrix have supported the case of the prosecution and testimony of PW4 is fully corroborated by the testimony of PW3. It was further submitted that all the accused persons have been identified by PW3 and PW4. As regards the charge u/s 412 IPC, it was submitted by Ms Neelam Narang, Special Public Prosecutor that ATM card of the prosecutrix was recovered from accused Anil. Mobile phone of prosecutrix and wrist watch of PW3 was recovered from accused Omkar. Gold ring of the prosecutrix was recovered from the possession of accused Shrikant.

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Payara card was recovered from the possession of accused Pushpinder @ Tuiyan. Mobile phone of the complainant was recovered from the possession of accused Golu. It has been submitted by Ld Special Public Prosecutor that doctors examined as PW1 Dr Anshu Gupta and PW2 Dr Pramod Kumar have proved the MLC of prosecutrix and have proved the fact that prosecutrix was subjected to rape/sexual assault. Statement under section 164 Cr.P.C of both witnesses ie PW3, complainant and PW4 (prosecutrix) were recorded and same has been proved by PW20 Sh Trilok Pal Singh, Ld ACJM, sister of the prosecutrix PW18 Ms Vandana Sharma had also supported the case of the prosecution and stated that at the time, when the complaint was lodged, she was present in the PS. She has also stated that on 7/01/09, Xray of the prosecutrix was taken in her presence. It was submitted by Special Public Prosecutor that PW16 Mr Anil Kumar and PW 17 Dr A.K. Bapuli are the witnesses of crime team. PW22 Ms Bimla Singh is finger print expert, who has proved that finger prints of accused persons have matched with the chance prints taken from the place of incident and car. Therefore, it was submitted by Ld Special Public Prosecutor that prosecution has been able to prove its case beyond reasonable doubt against the accused persons, hence accused persons should be convicted, for the offences they are charged with. In support of her arguments, Ld Special Public

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Prosecutor has relied upon the following judgments:

1. Rajinder @ Raju vs State of HP decided on 07/07/2009Crl Appeal No. 670 of 2003

2. Cr. A. No : 1265 of 2002 Bhupinder Sharma vs State of Himachal Pradesh.

3.Cr A. No 1581 of 2009 Ms S. vs Sunil Kumar and anr.

4. CrL Appeal No 592 of 2010 Ramesh vs State Tr. Insp of Police

5. Cr A No : 674 of 2006 State of UP vs Naresh

6. Cr A. No : 877 of 1995 Karnel Singh vs State of M.P.

33. All Ld defense counsels have argued the matter in detail by saying that prosecution has not been able to prove the case against accused persons hence they all should be acquitted. Instead of going into details of the arguments advanced by Ld defense counsels individually, as there is overlapping of arguments advanced by Ld counsels for accused persons, I will consider the same collectively.

Arguments of Ld defense counsels can be sumerized in following points:

(I) Much stress has been given by Ld defense counsels on the point of identification of the place of incident. It was argued by Ld defense counsels that PW3 (complainant ) and PW4 (prosecutrix)

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have given false statements before the court and they have lodged a false case against the accused persons as they were not present near the place of 'ganda nala' and since they were found in compromising position by the villagers, who have objected for the same, hence PW3 and PW4 have falsely implicated accused persons in the present case. Thus by raising this argument, Ld defense counsels have argued that there is doubt in the actual place of incident and that the complainant and prosecutrix have filed false case against accused persons, thus they should be acquitted.

(ii) The second limb of argument of Ld defense counsels has been that there is no medical evidence to prove that accused persons are perprators of the crime against the prosecutrix ie there is no medical evidence/scientific evidence which could link accused persons with the commission of crime against the prosecutrix.

(iii) It was further argued by Ld defense counsels that accused persons were not identified in Test Identification Parade (herein after called as T.I.P), as no such TIP was organized nor the accused persons were given any option of participating in TIP. As per the case of the prosecution, all the accused persons were identified by prosecutrix and complainant during the course of investigation.

Although, accused persons were not known to the prosecutrix or the complainant prior to the incident. Hence it was argued by Ld defense counsels that this identification is not valid and legal identification of accused persons, hence accused persons should be acquitted on this ground itself.

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(iv) It was further argued by Ld defense counsels that TIP of the case property, which is alleged to have been recovered from the accused persons have not been carried out nor identification of the weapons of offence i.e. wickets and bats have been carried out by the IO. It was further emphasized by Ld defense counsels that all the weapons of offence allegedly used by the accused persons are stated to have been recovered from their possession were not sealed by the IO and all these articles were commonly available in the market. There is no identification mark affixed on the case property, hence it was argued by Ld defense counsels that same cannot be believed to have been recovered from the possession of the accused persons or that same belonged to PW3 complainant and PW4 (prosecutrix).

(v) Lastly it was also stressed upon by Ld defense counsels that there are material contradictions in the testimony of PW3 (complainant) and PW4 (prosecutrix) qua the testimony of PW21 IO Inspector Anil Samaniya. It was further argued by Ld defense counsels that a false case has been registered against accused persons by the complainant as he is son of police official and his father was working as SHO in Delhi Police and due to this reason, a false case was registered in Noida against accused persons. It was further argued by Ld defense counsels that PW21 Inspector Anil Samaniya had admitted in his evidence that complainant PW3 had come to him on 06/01/09 itself and had stated that due to fear of his family, he has not stated the place of incident correctly. It was

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also stated by IO that PW4 (prosecutrix) had also admitted that they have given wrong facts before the police due to fear of their family, thus, it was stated by accused persons that since beginning of the case, prosecutrix and the complainant had tried to mislead the court, therefore the accused persons should be acquitted for the offences, they are charged with. In support of his arguments, Ld defense counsel for accused Omkar has relied upon various judgments, some of them are mentioned as below:

1.AIR 1979 SC 1408

2. 130 (2006) DCT 114

3. 2005 (II) RCT 421

4. 132 (2006) DLT 122

34. In support of his arguments, Sh K.K. Manon, Ld counsel for accused persons Pushpinder, Sudhir and Srikant has relied upon the following judgments:

1.Cr A No : 245 of 1973 Kanan and others vs State of Kerala.

2. Cr A. No : 206667 of 2009 Narender Kumar vs State (NCT of Delhi)

3. Cr A No 660/1999 Rohit Bansal vs State

4. Crl. A No : 951 of 2004ABBAS AHMAD CHOUDHARY vs State of Assam.

5. (2016) 4 Supreme Court cases 735

6. Cr A. No 10941098 of 2000 Rajoo and ors vs State of M.P

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7. Crl. Appeal No. 1141 of 2007 Mahavir Singh vs State of M.P.

35. I have considered the arguments advanced by Ld counsel for the parties and gone through the file. I have also gone through the judgments relied upon by Ld defense counsels as well as by Ms Neelam Narang, Special Public Prosecutor.

36. Before discussing merits of the case & appreciating the evidence led by the parties, I consider it necessary to mention that in the present case, Ld Special Public Prosecutor, Ms Neelam Narang had provided very valuable, substantial & useful help in explaining the lengthy case in summerized manner. She had provided valuable assistance to court while advancing final arguments in the case, by pointing out the necessary facts and evidence supporting the case of prosecution.

37. Present is a case where there are serious allegations of "gang rape" committed by accused persons on the person of the prosecutrix. As per the case of prosecution, PW3 complainant was present with the prosecutrix at the time of incident. But, at the same time, this case is also classic case of "botchedup" investigation carried out by the IO. After considering the evidence led by the prosecution in the present case including the medical evidence, scientific evidence and other evidence, it appears that IO Inspector Anil Samaniya had left no stone unturned for making this case impossible to

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be proved. I will discuss the evidence of present case on each and every aspect of the arguments advanced by Ld defense counsels.

38. In the present case, allegations against accused persons are that PW3 complainant and PW4 prosecutrix were student of Amity University. After attending classes on 05/01/09, they went to GIP Mall in Noida for buying certain articles and after returning from the GIP mall, on the way towards Delhi near ganda nala their vehicle i.e. Wagon R No. DL3CZ7188 was obstructed by 34 motorcycles on which 7 boys were present. Out of those 7 boys, 4 boys sat inside the vehicle of the complainant and forced the prosecutrix and the complainant on the back seat and drove the vehicle to jungle, where some other boys also came and total 1011 boys (as per the case of the prosecutrix) had committed gang rape upon the prosecutrix inside the car. As per the complaint "Pardarshak K3", after the incident of rape, those boys had taken away the mobile phone of the prosecutrix and complainant and wrist watch of the complainant with them. As per the case of the prosecution after the incident, prosecutrix and complainant came back to the house of the complainant, where family members of the prosecutrix were also present and later on after consultation, they came to PS Sector 20, Noida and since the place of incident ie ganda nala was not falling within the jurisdiction of PS Sector 20 Noida, they

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were sent to Sector 39 Noida where the present complaint was lodged and further investigation started.

39. This is a case under the unamended provision of Section 376 IPC i.e. prior to year 2013.

40. In the light of these facts, as per the FIR, I will discuss the evidence led by the prosecution coupled with the arguments advanced by Ld counsels for the parties on each aspect of the case.

Medical Evidence

41. In the present case, on the intervening night of 5/60109 after lodging the FIR, complainant and prosecutrix were medically examined in the hospital at Noida. PW1 Dr Anshu Gupta had stated that she had examined the prosecutrix at 2 a.m and MLC of the prosecutrix was proved as "Pardarshak K1". PW2 Dr Pramod Kumar has examined the slide of the prosecutrix on 12/01/09 and had given the opinion that dead sperms were found in the slide of the prosecutrix and report was exhibited as "Pardarshak K2". Testimony of PW1 Dr Anshu Gupta and PW2 Dr Pramod Kumar, taken together, categorical shows that prosecutrix had been subjected to sexual intercourse. No opinion was given by either PW1 or PW2 that sexual intercourse to which prosecutrix had been subjected was forced or not. Similarly, there is no opinion expressed by PW1 and PW2 about there being possibility of gang rape by 11 accused persons on the person of prosecutrix.

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42. As per the testimony of PW3 , after the incident of sexual assault , there was bleeding from her privates parts but it is clear from the MLC "Prakarshak K1" as well as evidence of PW1, that no blood was found on the person of the prosecutrix. In the cross examination it has also been specifically stated by Dr Anshu Gupta (PW1) that prosecutrix had not suffered any injury or swelling on her Labia Majora and Labia Minora, whereas she has admitted that in case 11 persons have committed sexual assault on unmarried girl, there are chances that private parts will suffer swelling. Thus, the medical examination conducted on prosecutrix does not conclusively prove that she was subjected to sexual intercourse by 11 accused persons. Although, it is proved by the prosecution that prosecutrix was subjected to sexual assault or that she was involved in sexual intercourse during that night.

43. It was the duty of the prosecution to prove the case against accused persons beyond reasonable doubt for the commission of offence under section 376 (2) (g) IPC ( case filed before amendment of section 376 IPC). For proving so, prosecution had to prove: firstly that prosecutrix was subjected to sexual assault; secondly accused persons were preprators of the crime. And in order to prove this, there should be some evidentiary link between the accused and prosecutrix with the crime. In the present case, PW2 Dr

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Pramod Kumar has proved that dead sperms were found in the vaginal slide of the prosecutrix but no DNA examination was conducted of the blood of the prosecutrix nor any DNA report of accused persons have been filed on record by the IO. Rather it is clear from the testimony of PW17 Dr A.K. Bapuli, who has specifically stated in his detailed report, exhibited as Ex.PW17/A, that sample blood of the accused persons was sent in cloth parcel B, which was containing 11 envelops containing blood samples and hair samples of the accused persons, but since same were not collected properly, envelops were wet and samples have leaked during transportation. It is also mentioned in the report that other parcels, which were sent from FSL Agra were containing some plastic pieces and torn pieces of papers along with torn pieces of clothings, which is alleged to contain the semen mark on the same, but as same have already been used by FSL Agra, no sample could be examined properly and no conclusive report was given by PW17 in this regard. As regards the pieces of seat cover, which was sent again, it was observed by PW17 that although on the pieces of seat cover, spot of semen were found but as the same have already been cut by FSL Agra for checking the semen sample, therefore even from the seat cover no semen could be made available for DNA analysis.

44. Therefore after reading the complete report Ex.PW17/A, which is in respect to the DNA analysis of the samples, it is

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clear that no proper sample was sent to FSL Ranchi, thus, there is no scientific evidence available on record to prove that any semen spot, which was recovered from the seat cover of WagaonR belonged to any of the accused persons, being prosecuted in the present case.

45.Similarly it was observed by PW17 in Ex.PW17/A in respect to the underwear and other clothes of accused persons sent for FSL examination, that, proper sample for analysis of DNA sampling was not available. In last paragraph of the report at page no 4, it has been specifically observed by PW17, Dr A K Bapuly, that, "even if the DNA is isolated from the sample, it would be required to be matched with the samples of sperm found in the vaginal swab of prosecutrix and therefore, it was requested that if any vaginal swab of the prosecutrix had been collected during her medical examination, same should be sent for the examination". But in the entire evidence, it has no where been stated by the IO/PW21 Inspector Anil Samaniya or by any other witness and it is also not clear from the file, if any further sample of vaginal swab of prosecutrix was sent to FSL Ranchi for analysis of DNA or not. There is also no evidence on record to prove that any vaginal swab of the prosecutrix was preserved during medical examination of the prosecutrix or not. Hence in the absence of material evidence of finding sperms of accused persons in the vaginal swab of the prosecutrix, which was necessary to connect the

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accused persons with the offence under section 376 (2) (g) IPC, I am of the opinion that prosecution has not been able to prove through medical evidence any connection between the accused persons and the alleged offence.

46. It is the settled principle of law that even in the absence of medical evidence, connecting the accused with the crime, if testimony of prosecutrix and other witness is cogent and reliable then even in the absence of medical evidence, accused can be convicted for the offence of rape.

47. In the case of State of Punjab vs Gurmeet Singh reported in 1996 Cr.L.J 1996, Crl. L J 172, the Hon'ble Apex Court took a view that the courts dealing with the rape cases shoulder a greater responsibility and they must deal with such cases with utmost sincerity. Relevant para of the said judgment is reproduced as under:

"...It is an irony that while we are celebrating women's right in all spheres. We show little or no concern for her honour. It is a said reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assaultit

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is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature,to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the courts finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be

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sensitive while dealing with cases involving sexual molestation". (emphasis added)

48. Thus, in the light of judgment of State of Punjab vs Gurmeet Singh it is settled law that even on the sole testimony of prosecutrix, accused can be convicted, but for that testimony of prosecutrix should be cogent, specific, clear and reliable & also there should not be any factor raising suspicion in the case of the prosecution.

49. Similar is the view expressed by Hon'ble High Court of Delhi in Rohit Bansal vs State in Crl. Appeal No. 660 of 1999 passed by Hon'ble Mr Justice G.S. Sistani and Hon'ble Ms Justice Sangita Dhingra Sehgal. In this case, Hon'ble High Court has observed:

"It is a settled legal proposition that once the statement of the prosecutrix inspire confidence and is accepted by the court, as such, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.

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50. In the case of Rohit Bansal vs State (mentioned above), Hon'ble High Court has considered the judgment of Abbas Ahmed Choudhary vs State of Assam (2010) 12 SCC 115 wherein Hon'ble Supreme Court has held that:

" We are conscious of the fact that in a matter of rape, the statement of prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

51. Thus, by virtue of this judgment, Hon'ble Supreme Court has held in case Abbas Ahmed Choudhary vs State of Assam (mentioned above), which was relied upon by Hon'ble High Court in Rohit Bansal's case (mentioned above) that the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to the case of rape and there can be no presumption that the prosecutrix would always tell the entire story truthfully. Therefore, I will now proceed to discuss the other evidence led by the prosecution in order to consider whether the prosecution has been able to prove present case beyond reasonable doubt against accused persons.

TEST IDENTIFICATION PARADE

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52. Admittedly in the present case, no judicial TIP of any accused person has been conducted. It is the case of the prosecution that immediately after the FIR was lodged on 06/01/09 i.e. in the intervening night of 5/060109, during noon time, PW 21 Inspector Anil Samaniya IO of the case received a secret information about the accused persons, involved in the present crime, being present at Garhi Chokhandi, Hindon river pushta and that they are in possession of illegal weapons. After receiving the information, IO prepared a team, including PW12, PW13 and PW14 and went to the spot and arrested five accused persons namely Pushpinder, Sudhir, Srikant, Sanjay and Gautam. These five accused persons were identified by the prosecutrix and complainant, while they were returning from the hospital on 07/01/09 after conducting Xray of the prosecutrix, they saw these 5 accused persons, as per the case of prosecution, in the tempo and told the IO that these are the five persons, who were involved in the commission of offence on the intervening night of 5/6 01.09. Though, it is the case of the prosecutrix and complainant that they saw accused persons while returning from the hospital and had identified these accused persons at the spot but there are contradictions in the testimony of PW21 in this regard, which says that on 07/01/09 at about 12.30 p.m, complainant had come to the PS and submitted the application in writing, stating that he and prosecutrix have

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identified the accused persons namely Pushpnder, Sudhir, Srikant, Sanjay and Gautam, after seeing them in tempo, at crossing, while coming from Hospital. No statement of PW3,complainant and PW4 prosecutrix was recorded by the IO. Nor PW4 prosecutrix came to PS to specially state that she had actually identified those accused persons on the road. Again, this fact also shows that accused persons were kept in unmuffled condition, which is a violation of law. No names of police officials, in whose custody those five accused persons were present, when allegedly they were identified by PW3 and PW4 have been specified, nor their testimony to this effect had been recorded. As per the case of prosecution PW12 SI Tej Jaganath, PW13 SI Rajesh Chaturvedi & PW14 SI Mahender Singh Bhaduria were present with PW21 Inspector Anil Samaniya, IO of the case, when five accused persons namely Pushpinder, Sudhir, Srikant, Gautam and Sanjay were arrested. But these witnesses have not stated that PW3 and PW4 have identified these five accused persons on 07/01/09 in their presence. Prosecution is absolutely silent to the point as to who had produced these accused persons in court at Noida on 07/01/09. If PW3 and PW4 had seen & identified accused persons in tempo, while they were being taken to court, then definitely there must be some police officials in whose custody, these accused persons would be present. No explanation had been tendered by prosecution for

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not examining any of these police officials, who could conclusively prove that actually PW3 and PW4 have identified five accused persons in tempo on 07/01/09. Thus, this identification of five accused persons by PW3 and PW4 is not proved by prosecution beyond reasonable doubt and the identification of these accused persons by PW3 and PW4, subsequently in the court becomes doubtful.

53. Again on 10/01/09 accused Omkar, Golu and Shashikant were arrested by the police at Mahamaya flyover and as per the case of prosecution at that time prosecutrix and complainant were returning from their college after attending the counselling and had identified the accused persons there in the custody of the police. The third incident of identification of accused persons as stated by prosecutrix and the complainant is of 13/01/09, when they have gone to the court at Noida for engaging lawyer, there, they found accused persons present with the police and identified the accused Anil, Pushpinder @ Tuiyan and Little. Since accused persons were identified by the prosecutrix and complainant, therefore, as mentioned above, Investigating Officer did not consider it necessary to get the official TIP of the accused persons conducted and it was believed that accused persons have been rightly identified by the witnesses i.e the complainant and the prosecutrix.

54. It is important to mention here, at this stage, that on

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06/01/09 as per the case of prosecution, these 5 accused persons namely Pushpnder, Sudhir, Srikant, Sanjay and Gautam were arrested. Accused Little was arrested on 07/01/09. On 08/01/09 accused Anil was arrested and on 10/01/09 accused Omkar, Golu and Shashikant were arrested and on 11/01/2009 accused Pushpinder @ Tuiyan was arrested. Even after the arrest of the accused persons, no TIP of the accused persons were conducted. Admittedly accused persons were never kept in muffled face. It is only stated by the prosecution witnesses that prosecutrix and complainant miraculously happened to be present at the same time and at the same spot, when the accused persons were being transported to the court or arrested or was present in the court itself without being informed by the IO or any other police official for the same.

55. It is also strange to note that though both the prosecutrix and complainant have stated that they have identified the accused persons in the manner, as mentioned above on 13/01/09 in the court, but testimony of PW21 Inspector Anil Samaniya is completely silent about the identification of three accused persons ie accused Anil, Pushpinder @ Tuiyan and Little on 13/01/09 by the prosecutrix and complainant in the court. As PW21 has not stated anywhere in his examination in chief that when the accused persons were produced before the court on 13/01/09, either the prosecutrix

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or the complainant were present in the court or they have identified the accused persons in any manner. It is therefore clear that accused persons ie Anil, Pushpinder @ Tuiyan and Little were never identified by the prosecutrix and complainant prior to their identification in the court. It is also settled principle of law, also in view of the judgment that identification of the accused for the first time in the court is not considered to be proper identification of the accused. Therefore, I am of the opinion that prosecution has not been able to prove that accused persons were rightly identified by prosecutrix and complainant.

56. Ms Neelam Narang, Special Public Prosecutor has relied upon the judgment Cr Appeal No. 1581 of 2009 titled as Ms S. vs Sunil Kumar and anotherin this case Hon'ble Supreme Court has referred the matter of Malkhan Singh vs State of M.P reported as (2003) 5 SCC 746 and had observed that:

"She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had therefore, abundant opportunity to notice their feature. In fact on account of her traumatic and tragic experience, the faces of the appellant must have got imprinted in her memory, and there was no chance of her making a mistake about their

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identity".

57. By referring the judgment of Malkhan Singh vs State of M.P., Hon'ble Supreme Court in Ms S. vs Sunil Kumar had stated that since the prosecutrix was subjected to sexual intercourse during broad day light and the matter was immediately reported & also by very nature of the offence close proximity with the offender would have certainly afforded sufficient time to imprint upon her mind the identity of the offender.

58. However, the facts of the present case can be differentiated from the facts of case before Hon'ble Supreme Court in Ms. S. vs Sunil Kumar, because in the present case, offence of gang rape was allegedly committed in the dark winter night at secluded place ie jungle where there was no provision of light. Only the parking light of the car outside the car and inner small light of the car was lit at the time of commission of offence as per the case of the prosecution. To my mind, the inner light of the car could not have been sufficient to lit the complete car in a manner that the prosecutrix would have been able to identify or remember the faces of the accused persons during the commission of offence. Also, admittedly PW3, complainant was outside the car, when alleged incident of gang rape had taken place, thus it is impossible to believe that in the complete darkness, in a field, which is lit only by parking light of Wagon Car, PW3 would have seen the faces

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of these accused persons, so clearly that he could vividly remember their faces. In the present case, no judicial TIP has been conducted and even PW3, complainant, who is stated to have stayed outside the car when the offence was committed and PW4 (prosecutrix) ( has not been able to identify all accused persons, clearly with their names in the court, even there are discrepancies in the identification of the accused persons by PW3 and PW4.

59. In view of above discussion, I am of the opinion that facts of the case Ms S. vs Sunil Kumar (mentioned above) can be differentiated from the facts of the present case.

60. My view also gets support from the case of State of Maharashtra vs Syed Umar Sayed Abbas and others (2016) 4 Supreme Court Cases 735. In this case, Hon'ble Supreme Court while considering the point of TIP of accused persons had observed that:

" It is very clear that in the present case, the incident of firing occurred in the circumstances wherein much time was not available for the eye witness to clearly see the accused. In such a situation, it was of much more importance that the test identification parades were to be conducted without any delay. The first test identification parade was conducted by PW18 after more than a year of the incident. Even if it

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is taken into account that A12 was arrested after a year and within one month thereafter the test identification parade was conducted, still, it is highly doubtful whether the eye witnesses could have remembered the faces of the accused after such a long period. Though, the incident took place in broad day light, the time for which the eye witnesses could see the accused was not sufficient for them to observe the distinguishing features of the accused, especially because there was a commotion created after the firing and everyone was running to shelter themselves from the firing.

61. In the case of State of Maharashtra vs Syed Umar Sayed Abbas and others though TIP of the accused was conducted after a gap of period of one year, but same was considered to be doubtful by Hon'ble Supreme Court. Whereas in the present case, no TIP of accused persons had been conducted. The offence was committed on dark winter night, in jungle where there was no source of light. Therefore in such circumstances, identification of accused persons by material witnesses PW3 (complainant) and PW4 (prosecutrix), after almost four years of the incident in the court becomes doubtful, specially in the light of the fact that

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as per my above discussion, identification of the accused persons by PW3 and PW4 in the manner as stated by them in their evidence can not be considered to be reliable or truthful.

IDENTIFICATION OF THE CASE PROPERTY

62. In the present case, two types of case property has been produced before the court, which is stated to have been seized by the IO in the present case. One category of the case property is the case property, which was allegedly looted from the complainant and prosecutrix and second type of the case property is the case property i.e. weapons, stated to have been used by the accused persons in the present case. Admittedly no judicial TIP of the case property either of first category or second category was carried out by the IO in this case. It is also to be noted that alleged weapons of offence recovered from the possession of the accused persons are the cricket wickets and bats, which were neither sealed at the time of seizure nor put to identification in judicial TIP nor produced before the court in sealed condition.

63. As regards the case property, which allegedly belonged to the complainant and prosecutrix, it is the case of the prosecution that two mobile phones, one each belonging to the complainant and the prosecutrix, wrist watch belonging to the complainant and gold ring belonging to the prosecutrix were recovered from the possession of the accused persons on

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10/01/09. As per the case of the prosecution, complainant and prosecutrix had reached the place i.e. Mahamaya Flyover, where the accused persons namely Omkar, Shashikant and Golu were arrested, by chance and in their presence, the case property was recovered, therefore, no identification of the case property through TIP was required to be carried out by the IO. Apart from these articles,one Pyara card of the prosecutrix and one ATM card of the prosecutrix is also alleged to have been recovered from the possession of the other accused persons.

64. Mobile phone make Nokia and wrist watch (make Police) were stated to have been recovered from the accused Omkar on 10/01/09. Gold ring belonging to the prosecutrix is stated to have been recovered from the possession of accused Shashikant. Other mobile phone make Sony Ericson belonging to the complainant was alleged to have been recovered from the accused Golu, who is juvenile and his trial has already been separated. Apart from these, one Pyara card and ATM belonging to the prosecutrix were stated to have been recovered from the possession of accused Pushpinder @ Tuiyan and Anil respectively. It is also important to mention here that accused Anil was arrested on 08/01/09 and on the same day, as per the case of the prosecution, he got recovered ATM card belonging to the prosecutrix, which was lying under the bed sheet in the room of first floor of his house. It is

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difficult to imagine that a person, who has committed offence of gang rape & decoity will keep the "ATM card" of the victim with him, even after three days of the incident, knowing fully well that coaccused persons have already been arrested, and that "the ATM card" could not have been used by him without knowing the PIN no. of the same. It is not the case of prosecution that prosecutrix was forced to tell the PIN No. of her ATM card or that she ever disclosed the PIN of that card to any of the accused persons. Further, this ATM was never placed before the prosecutrix for verification and identification, as to whether the same belonged to her and whether the same was looted from her during the incident or not, as the complaint of complainant is silent in this regard.

65. Similarly, one Pyara card, is alleged to have been recovered from accused Pushpinder @ Tuiyan, who was arrested on 11/01/09 and this Pyara card was also recovered allegedly at the instance of accused Pushpinder @ Tuiyan from the bushes. Again, the purpose, use and requirement of this Pyare Card is no where explained by prosecution. It is again not believable that after almost six days of incident, accused Pushpinder @ Tuiyan will retain the Pyara card in his possession, without there being any specific use of Pyara card for him. Specially when the coaccused persons had already been arrested by police, the natural conduct of accused will be to get rid of any article, which could connect him to one

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crime. Further, complaint is silent about snatching of Pyara card of PW4. In my opinion, prosecution had not proved the recovery of these articles from accused persons beyond reasonable doubt.

66. As regards the recovery of the case property i.e. weapons used in crime, one important aspect to be considered is that as per testimony of PW21 Inspector Anil Samaniya, IO of the case, when ever the case property was recovered from the possession of the accused persons, he has prepared the site plan of that area but the site plans Ex.PW21/P, Ex.PW21/N and Ex.PW21/Q does not bear the signature of police officials, who were accompanying the IO nor they bear the signature of the accused from whose custody the alleged case property was recovered and thirdly and important point is that none of these weapons were recovered in the presence of the complainant and prosecutrix. It is also important to note that all these site plans, Ex.PW21/P, Ex.PW21/Q and Ex.PW21/N were prepared by IO on 15/01/09 ie not on the date when alleged recoveries were effected but later on during investigation and all these site plans do not bear signatures of any persons other than IO, PW21. Thus, these site plans clearly show that there were prepared in police station to fill the lacuna in the investigation, hence cannot be believed to be correct site plans.

67. As regards the recovery of mobile phones (make Nokia and

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Sony Ericson), which were stated to be the phones of PW3 and PW4, neither any bill of said mobile phones have been placed on record by the complainant and the prosecutrix nor any CDR of those mobile phones have been obtained by the IO, which could connect the IMEI No. of the mobile phones, recovered, with the ownership of complainant and the prosecutrix. If IO would have obtained the Call Detail Record and Customer Application Form of the mobile numbers of the prosecutrix and complainant, as mentioned already in the complaint "pardarshak K3", this would have shown and proved that the mobile phones recovered from accused persons, actually belonged to the prosecutrix and the complainant or not. From the call detail records of mobile numbers of PW3 & PW4, IO could have established the proof of IMEI number of mobile set, which was being used by prosecutrix and complainant. Presently, there is no evidence to prove that the mobile phones (recovered) were actually being used by PW3 and PW4 at the time of incident. This would have fortified the case of the prosecution and in the absence of this material evidence, recovery of such articles, which are easily available in the market, in the absence of any ownership documents, becomes weak kind of evidence.

68. As regards the gold ring alleged to have been recovered from accused Shashikant, there are contradictory statements given by the prosecution witnesses in this case. PW21 Inspector

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Anil Samaniya had stated that ring was identified by the prosecutrix as well as by him in the court as gold ring was having inscription of letter "AS". It was also stated by PW8 Ct Daya that ring could be identified by him as it bears inscription of letter "KS". The contradictory statements made by PW8 and PW21 raises doubt about the genuineness of the Golden Ring. It is also important to note that no such statement was given by the prosecutrix in her examination in chief that the ring was having any inscription of letter "AS" on it. Rather, when the question was asked from the prosecutrix PW4 in her cross examination by Ld defense counsel, as to how could she identify the ring, she had stated that ring was given by her mother on her birthday. Prosecutrix has no where stated in her examination in chief or in cross examination that she could identify the ring as it was bearing inscription of letter "AS" or that inscription "AS" belonged to her. Even otherwise, inscription "AS" could not match with the name of the prosecutrix, as is clear from the record of the case. Therefore, the recovery of the ring belonging to prosecutrrix from the possession of the accused Shashikant is doubtful in this regard.

WEAPON OF OFFENCE

69. As regards the identification of weapon of offence ie cricket wickets and bats, it is common knowledge that people of India are fan of cricket and the boys start playing cricket from

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very early age i.e. from the age of 23 years, when they can hold the bat. Therefore, finding cricket wickets and bats from some people will neither make these articles as weapons of offence, nor the people can be called offenders in all cases. Even if, it is believed that offenders of this case had actually used the cricket wickets and bats for commission of offence, then also, in my opinion, prosecution has not been able to prove beyond reasonable doubt that these articles were actually used in commission of offence or that these articles were recovered from possession or at the instance of accused persons. All such articles were kept in unsealed condition since the alleged date of recovery, hence there were chances of manipulation and interference with the case property. Secondly these wickets and bats are easily available in market, thirdly, these were also recovered from the open places, which could have been in the knowledge of any one, hence does not prove the identity of these articles, and does not connect the same with the accused persons unambiguously.

70. It is not the case of the PW3 and PW4 that accused persons had used revolver or katta or knife, which was recovered from the possession of 5 accused persons, arrested on 06/01/09. Even the complaint is silent about the fact that accused persons have used revolver/pistol/knife to threaten the complainant and prosecutrix. But strangely only PW3 in his

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statement (examination in chief) had stated that accused persons have used revolver and knife for threatening them but as he was frightened on the date of incident, he forgot to mention the same in his complaint. I am of the opinion that in case a person is threatened with the knife or revolver and also threatened with the cricket wicket and bat, he may forget the minor details about the use of cricket wickets and bats but he will never forget that he was threatened with knife or revolver or that at gun point he was made to follow the instructions of the offender. This is material contradiction in the testimony of PW3 complainant, which has not been explained by the prosecution. The testimony of police officials is completely silent on the aspect as to whether the accused persons have used the revolver, pistol, katta etc or not. In my opinion, this is an improvement made by PW3 over the case of the prosecution, which again falsifies the case of the prosecution.

CONTRADICTIONS IN THE TESTIMONIES OF THE PROSECUTION WITNESSES

71. The major contradiction in the testimony of prosecution witness, which has been tried to be created by the Investigating Officer in this case is, in respect to the place of incident where the offence had actually taken place. As per the testimony of PW3 complainant and PW4 prosecutrix, they were abducted from the place near ganda nala towards

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jungle where the prosecutrix was gang raped by the accused persons, whereas PW21, IO of the case, PW14 SI Mahender Singh Bhaduria, who has joined the investigation along with the IO, had stated that on 06/01/09 complainant, PW3 had come to the PS Sector39 Noida and had met the IO (PW21) Inspector Anil Samaniya and had informed him that he had given wrong place of incident in his complaint and actual place of abduction or of wrongful confinement, was at the dead end of road between Village Prathla Khanjarpur and Garhi Chokhandi and had also pointed out the place, which is end of the road near Hindon river stating that he along with the prosecutrix were present at that place when culprits had abducted them and thereafter, from that place both prosecutrix and complainant were taken to the jungle area of the village Baholpur near Hindon river, where the prosecutrix was gang raped. The site plan prepared in this regard is mark A which was later on exhibited as Ex.PW21/E. In the testimony of PW4 (prosecutrix), when she was shown the site plan mark A, she has categorically stated that the site plan mark A is incorrect and she has also stated that other site plan placed on record and prepared by the IO were neither prepared by him in her presence nor are correct. Once the him in her presence main witness ie prosecutrix had denied the site plan (Mark A) Ex.PW21/E to be correct, the site plan placed on record itself raises doubt about the truthfulness of the case of the

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prosecution. Also it is important to note that this document Ex.PW21/E, although as per the case of PW21, was prepared at the instance of PW3 complainant but it does not bear the signature of the complainant. Also this site plan was never placed before PW3 for the purpose of identification. This is material contradiction in the testimony of the prosecutrix, who was victim of the offence and the IO PW21 who had the responsibility to investigate the matter fairly. This contradiction, in the testimony of two important witnesses makes the case and document Ex.PW21/E unreliable.

72. One more important aspect has been over looked by the prosecution as well as by Ld defense counsel, in the present case, ie as per the complaint Pardarshak K3, one motorcycle No. has been given by the complainant as UP16L4619, which was used by the boy, who came at the spot of incident and after seeing him, other boys ie "wrong doers" had asked that boy to leave the place and accordingly he left the place. Therefore, as per the complaint, as filed by the complainant, the person who was driving the motorcycle bearing no. UP 16L4619 was not involved in the commission of offence of rape against the prosecutrix nor he was involved in the other offences against the prosecutrix and the complainant, as is clear from the complaint itself. However, the story has been twisted by the IO in his investigation and the person, who was lateron identified by the police as Pushpinder son of Nanak

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Chand was made an accused in the present case, and the motorcycle bearing no. UP16L4619 was recovered from him, which was registered in the name of his father Sh Nanak Chand. Once, it was specifically stated by the complainant PW3 in his complaint that the person who had come on motorcycle bearing no. UP16L4619, had left the spot, when scolded by the offenders at the time of commission of offence, why he was made an accused by IO and why he was identified by PW3 and PW4 as an accused has not been explained by prosecution. There is no subsequent statement of PW3 and PW4 recorded under section 161 Cr.P.C to prove that the person, who came on motorcycle bearing No. UP16L 4619 had also joined the other offenders in the commission of offence.

73. Further, it is case of prosecution that accused Pushpinder son of Nanak Chand was arrested by police with other coaccused persons on 06/01/09, when he was found in possession of same motorcycle bearing no. UP16L4619. But despite this, same motorcycle was not deposited in the malkhana till 14/01/09, as is clear from the testimony of PW 7 HC Satya Pal Singh. Photocopy of the relevant extract of the register has been proved as Ex.PW7/D in this regard, which clearly specify that motorcycle, make Pulsar, no UP16L4619 along with three other motorcycles were deposited on 14/01/09. The prosecution witnesses specially PW21, IO, is

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silent about this discrepancy in the testimony of the witnesses PW3, PW7 and contradiction in the documentary evidence produced before the court. If accused Pushpinder had been arrested on 06/01/09 itself along with motorcycle, seized from his possession , why that, motorcycle was not deposited in the malkhana till 14/01/09, when the same was seized by IO vide seizure memo, Ex.PW13/A on 06/01/09. This proves that, the material inconsistencies and irregularities which affect the root of the case, have been committed by the IO in the present case and the case has not been investigated by the IO properly, thoroughly and diligently for the reasons best known to him.

74. It would not be out of place to mention here that in the entire investigation carried out by the IO, the vital piece of evidence ie WagonR car in which the alleged offence had taken place had not been seized by the IO through out the investigation. PW7 HC Satya Pal Singh, MHCM is silent about the Wagon R car No. DL3CZ7188, being ever seized or deposited in malkhana of PS Sector 39 Noida. In contrast PW14 and PW 21 have admitted in their evidence that Wagon R car was never seized by the police but it was parked in the premises of PS Sector 39, Noida, which was later on inspected by the FSL Officials on 08/01/09. Even if it is assumed that the car was taken into possession by the police and due to inadvertence, same could not be seized in record, it is admitted by

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Investigating Officer, PW21 that the car was left in the premises without there being any security for preserving the vital piece of evidence. No document has been placed on record to prove as to how and when the vehicle Wagaon R car was released to the family of the prosecutrix and under whose order. Thus, I am of the opinion that due to gross negligence of the IO, vital piece of evidence was not properly collected and preserved, and the prosecution case was made weaker by the negligent conduct of the IO.

75. Ms Neelam Narang, Special Public Prosecutor, during the course of arguments has submitted that finger print of the accused persons ie Srikant, Sanjay, Sudhir, Gautam and Little were found matched with the chance prints lifted from the place of incident, therefore, it was argued by Ms Neelam Narang, Special Public Prosecutor that prosecution has been able to prove its case beyond reasonable doubt against these accused persons that they were involved in the commission of gang rape of prosecutrix. While examining the finger print expert report (Ex.PW22/E) and the arguments of Ld Special Public Prosecutor coupled with the testimonies of other prosecution witnesses, it is clear that finger prints of only those accused persons were found matched with the chance prints, who have been arrested, as per the case of the prosecution till 08/01/09. At the cost of repetition, it is to be mentioned that on 06/01/09, accused persons ie Srikant,

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Sudhir, Sanjay, Pushpinder and Gautam were arrested and accused Little was arrested on 07/01/09. The finger prints of only those accused persons have matched with the chance print taken from place of incident, who have been arrested prior to 08/01/09, which is clear from the testimony of the prosecution witnesses. It is also important to note, at this stage, that PW22 had stated that finger prints of these accused persons have matched with the chance prints, which were taken from the place of incident. Once the IO of the case, PW21 Inspector Anil Samaniya had created confusion in respect to the place of incident, it is not clear as to from which place of incident, these finger prints were taken by the scientific officials at the instance of the IO, whether the same were taken from the place of incident or Veeru Ka Khet or from the place of incident which is called as Pappu Ka Khet? If the IO himself was not aware of the actual place of incident how could he get the same place inspected from the Scientific Officers of FSL, this itself creates a dent in the story of the prosecution and makes it unreliable.

76. Admittedly no chance prints, taken from the car, were found to have matched with the finger prints of the accused persons, as it was found to be smudged & unclear. The reason of the same may be, because, the car was left in open and it was not kept in proper custody. Therefore, I am of the opinion that even finger prints evidence cannot be taken against accused

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persons and even this evidence has not been able to prove beyond reasonable doubt the commission of offence against the present accused persons.

77. While considering the report of PW22, it is also required to consider that, chance prints were taken from the place of incident on 08/01/09 and admittedly the place of incident was never protected, preserved or cardoned off by the IO of the case. Further, admittedly the place of incident is the "Khet" ie agriculture land of some person. Neither that person was examined for proving the commission of offence on his land nor his statement was recorded during investigation. Even signature of such person was not obtained on site plan.

78. Apart from the other factors mentioned above and argued by Ld defense counsels, certain points are also to be considered and looked into; firstly while prosecutrix was examined, she had stated that she had heard the name of 12 persons as the offenders were talking to each other when the offence was committed. But in her statement given to the police in writing, she has no where mentioned any such name, which she had heard nor she had mentioned the name of persons, whose names she had heard during the commission of offence, in her written statement given to the police on 07/01/09, which is Ex.PW4/A. It again belies the case of the prosecution.

79. Secondly, admittedly the complaint pardarshakK3 was written by Sh M.R Sisodiya, who is stated to be the uncle of

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the complainant PW3. But this writer of the complaint has not been examined by the prosecution nor his statement has been recorded, which is material lacuna created in the case of the prosecution as testimony of Sh M.R. Singh Sisodia would have proved the circumstances, in which the complaint was lodged and why the complaint was written by him. It is also important to note that complainant had reached the PS with "written complaint" and his statement was not recorded by the IO in the PS. Under which circumstances, the complaint was written before reaching the PS and at what place, the complaint was written, were material facts, which have not been proved or explained by the prosecution.

80. Thirdly, as regards the site plan of place of incident, it is important to mention that though PW21 had stated that site plan was prepared at the instance of the PW3 but none of the site plans bear the signature of the complainant Sh Amit Panwar.

81. Fourthly, the statement of the prosecutrix and complainant under section 164 Cr.P.C were recorded after more than one month ie on 09/02/09 but no explanation has been tendered in the entire evidence led by the prosecution as to why there was delay caused in recording the statement of the complainant and prosecutrix.

82. Fifthly, identity of the accused persons is doubtful as there is no explanation tendered as to how the complainant and

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prosecutrix were present exactly on the same place and time on all the three occasions, when accused persons were arrested by the police. No investigation was carried out by the IO to prove that on 10/01/09, PW3 and PW4 had actually attended their college for counselling. Entire case of prosecution is silent on this aspect. Whether PW3 and PW4 had attended "counselling" in respect to their studies or in in respect to the offence is not clear. As it is impossible to believe that a girl, who had been subjected to 'gang rape' by so many accused persons, will attend her college for counselling for studies within 23 days of the incident.

83. Sixthly Although it is the case of prosecution that PW3 and PW4 have purchased certain stationary articles and some eatables from GIP Mall, Noida, but admittedly no stationary articles had been recovered, either from the Wagon R car or from the place of incident. This again proves that entirely correct facts have not been narrated by PW3 and PW4.

84. Seventhly - As per the testimony of PW13 and PW21, place of incident was inspected on 06/01/09 itself and certain items like parking card, coca cola glass with lid and empty plastic bottle label "SMIRONOFF" were recovered from the place of incident, which were seized vide seizure memo Ex.PW14/B ( also Pradarshak K5). But the testimony of PW7, who was MHC(M) of the PS Sector39, Noida is silent about it. Thus these articles were not deposited in malkhana. Hence

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tempering with case property and planting of case property can not be ruled out.

85. Eightly As per the evidence led by prosecution on 08/01/09, scientific officers had visited the place of incident and they have taken some tissues (nakpinks) and brown paper from the place. These were also deposited in malkhana on 08/01/09. Question thus arises, if the site of incident was thoroughly examined by IO (PW21) on 06/01/09 and articles were seized then how and why these tissues were not seized on 06/01/09. Needless to say, it raises suspicion of tempering with the place of incident & thus shatters the credibility of prosecution case.

86. Ld Special Public Prosecutor had relied upon the judgment of Crl. Appeal No. 877 of 1995Kernel Singh vs State of M.P.1995 SC 2472in this case Hon'ble Supreme Court has observed that :

"We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourers. To acquit solely on that ground

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would be adding insult to injury."

87. Further, in this case, Hon'ble Supreme Court has observed that if the totality of the circumstances appearing on the record of the case discloses that prosecutrix does not have strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

88. Even this judgment as relied upon by Ld Special Public Prosecutor can be differentiated from the facts in hand, as in the present case defective investigation has caused loss of material piece of evidence regarding connection of the accused with the offence, identification of accused, identification of place of incident as well as identification of the case property. No material evidence has been collected by the IO in respect to the identification of accused, case property, place of incident nor any evidence has been scientifically collected to connect the accused persons with the commission of offence. No doubt, there was no motive attributed to the prosecutrix or complainant for lodging the false FIR against accused persons except the averment that PW3 complainant is son of SHO of Delhi Police, hence he has falsely implicated accused persons. But there is no evidence led by the accused persons to prove that PW3 and PW4 were knowing any accused person before the incident or that they had any rivalry with the accused persons. Strangely enough,

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in this case, there is no question of false implication of the accused persons by the prosecutrix and complainant, rather it appears to be case of false implication of the accused persons by the hands of the IO. By creating many lapses in the investigation, leaving many threads of investigation untied, IO on one hand, made it impossible that case be finally concluded in the conviction of the accused persons and on the other hand he had arrested the accused persons on the ground that they were involved in the commission of present offence but no proper identification of the accused persons was carried out from PW3 and PW4. Therefore, I am of the opinion that lapses in investigation from the side of the IO are to such an extent which cannot be ignored or avoided.

89. In view of my above discussion, I am of the opinion that case of the prosecution suffers from material contradictions, irregularities and proper procedure of law has not been followed while investigating the matter. Even the medical evidence and scientific evidence do not support the case of the prosecution. The prosecution has not been able to prove the place of incident of the commission of offence of abduction against the prosecutrix and complainant. No judicial TIP of accused persons or the case property has been conducted by the IO. Even the weapon of offences have not been proved by the prosecution, hence benefit of doubt is to be given to the accused persons. Hence accused persons ie Shrikant, Sudhir,

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Pushpinder, Gautam, Little, Shashikant,Sanjay, Anil, Omkar @ Sharad are acquitted for the offences under section 342/376(2)(g)/395/397 IPC. Accused persons Pushpinder, Shashikant, Anil and Omkar are also acquitted for the offences under section 412 IPC. As per provisions of 437A Cr.P.C, bail bonds of accused persons are extended for the further period of six months on the same terms and conditions as imposed earlier.

90. After considering the entire evidence as collected during investigation and led by the prosecution, I am of opinion that in this case, apparently Investigating Officer of the case, PW21 Inspector Anil Samaniya, has not properly investigated the matter. No vaginal swab of PW4 prosecutrix was collected/sent to FSL to facilitate the DNA analysis of sperms found in the samples of prosecutrix. Blood samples of accused persons were taken/sealed and transported in such casual manner that the entire sample leaked and thus could not be used for DNA analysis. No second samples were sent or examined. Place of incident of abduction was deliberately confused by IO, as no such statement was given by PW3 or PW4 in court, nor their statement to this effect was recorded by IO under section 161 Cr.P.C. Place of incident of Rape was not protected/cardoned off to avoid the violation of same. Wagon R car, which was actually the place of incident was not protected, seized and preserved. Motorcycle No. UP16 L

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4619 was deposited in Malkhana on 14/01/09, although allegedly seized on 06/01/09. These factors clearly show that due to the negligent, casual and unprofessional investigation conducted by the Investigating Officer, real culprits of the case could not be identified/arrested or subjected to administration of justice. Hence, I feel it appropriate that necessary action be taken against PW21 Inspector Anil Samaniya, IO of the case for his improper investigation of the case. Copy of the order be sent to SSP NOIDA for taking appropriate and necessary action against Inspector Anil Samaniya, IO of the case.

91. File be consigned to record room.

Announced in the open Court on (SHAIL JAIN) this 16th February, 2017. Additional Sessions Judge, (Special Fast Track Court)01, West, Tis Hazari Courts, Delhi

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1. Rajinder @ Raju vs State Of Hp Decided On on 16 February, 2017