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Delhi District Court

State vs . 1. Deepak Malik on 9 December, 2014

                            1
                                                                                 FIR No. 63/06
                                                                            PS - Kanjhawala



    IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
   ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK 
    COURT : NORTH­WEST DISTRICT : ROHINI : DELHI

SESSIONS CASE NO. :  39/13
Unique ID No.     :   02404R0347852006

State         Vs.               1.  Deepak Malik
                                     S/o Sh. Jai Bhagwan
                                     R/o RZH­424, Gali No. 12,
                                     Raj Nagar Part - II,
                                     Palam Colony, New Delhi.

                                2.  Sandeep Yadav
                                     S/o Sh. Kanwar Singh
                                     R/o RZH­184, Gali No. 6,
                                     Raj Nagar Part - II,
                                     Palam Colony, New Delhi.

                                3.  Manjeet Singh
                                     S/o Sh. Balwan Singh
                                     R/o House No. 1276,
                                     Mata Wali Gali,
                                     Dhandhu Market,
                                     Bawana, Delhi.




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                                         2
                                                                                              FIR No. 63/06
                                                                                         PS - Kanjhawala




FIR No.         :  63/06
Police Station  :  Kanjhawala
Under Sections  :  363/376(2)(g)/506 IPC
                   & u/s 100.2/177 M. V. Act.



Date of committal to session Court          :     24/11/2006

Date on which judgment reserved             :     19/11/2014

Date on which judgment announced :                09/12/2014



J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under :­ That on 21/05/2006, an information was received in the Police Station - Kanjhawala that in one Maruti Car No. DL­6CD­6807 Color - White, 800 CC, three boys after taking one girl had fled towards Kanjhawala, which was recorded vide DD No. 27A and the copy of the said DD was given to HC Balraj for appropriate action, who alongwith Constable Dalip Singh reached at main road, Village Rani Khera, 2 of 235 3 FIR No. 63/06 PS - Kanjhawala keeping in view the circumstances call was also made to W/SI Sudesh Dahiya, who alongwith W/Constable Mukesh reached there, because from the above said car the complainant/prosecutrix had jumped out and the three boys had fled in that car, finding the matter of rape, HC Balraj Singh produced the victim girl before SI Sudesh Dahiya. When SI Sudesh Dahiya was making interrogation from the victim girl, her father Sh. Kamal Manna and her sister Munmun also reached at the spot who had already been informed by HC Balraj Singh. During the same (Isi Dauran) SI Sudesh Dahiya received information through wireless that the said Maruti Car, the boys, has been apprehended by PCR van near Karala School. Accordingly, SI Sudesh Dahiya with police officials, victim girl, her father, her sister reached near Karala School. There HC Suresh Chand Incharge PCR Van Commander­69 produced two boys and Maruti Car No. DL­6CD­6807. The victim girl identified both the boys as Deepak Malik and Sandeep. HC Suresh Chand while producing one black color toy like (khilonanuma) pistol on which on one side of the barrel US­9 MM M­9/R/BERTTA/PB and on the other side of the barrel PIETRO BERTTA/MOD­92FS/CAL­9 made in China M­9/P/ERTTA was engraved, told that this artificial (Nakli) pistol was recovered during 3 of 235 4 FIR No. 63/06 PS - Kanjhawala the search of the said car. The pistol is made of plastic. Its barrel is shining and steal like (steelnuma) the body has been given metallic finish. Butt is of black color, on the both side of which horse (ghoda) is shown (ankit), alongwith the butt (Butt Ke Saath), below the barrel, trigger is installed (Trigger Laga Hai) by which hammer moves backward and forward. SI Sudesh Dahiya prepared a sketch of the said pistol and thereafter took the same in the police possession. The said Maruti Car was also taken into the police possession. The PCR staff was relieved (Farik Kiya). Thereafter, I.O. SI Sudesh Dahiya with victim girl, her father, her sister with the case property and the accused Deepak Malik and Sandeep came to the police station. The statement of the victim girl was recorded which is to the effect that, she is residing at house no. 5227, Ashok Mohalla, Bhooton wali Gali, Nangloi, Delhi. She is having two more sister and brother who are elder to her. She has studied upto 10th class. Initially she was knowing Bobby and then through Bobby she came to know Sandeep by phone (Phone Se). She had talked with Sandeep two or three weeks ago and firstly Sandeep had met her today on 21/05/2006 at Nangloi Bus Stop at about 4:00 p.m. He had told color of his clothes for the purpose of his identification (Usne 4 of 235 5 FIR No. 63/06 PS - Kanjhawala Apni Pehchan Ke Liye Apne Kapdo Ka Rang Bataya Tha). She was called by Sandeep on the pretext of meeting Bobby (Mujhe Sandeep Ne Bobby Ke Bahane Bulaya Tha). Sandeep had told her that Bobby will meet her at Peera Garhi (Sandeep Ne Mujhe Yeh Kaha Ki Bobby Mujhe Peera Garhi Par Milega) hence she sat in the car, which was Maruti Car no. DL­6CD­6807 (800 CC). At that time, there were two other boys also in the car whose name during the course of conversation were told as Deepak Malik and Manjeet by Sandeep. Manjeet was driving the car at that time. When stand of Peera Garhi came and she could not see Bobby there then she told Sandeep let she be deboarded at Peera Garhi (Jab Peera Garhi Ka Stand Aaya To Wahan Mujhe Bobby Dikhai Nahi Diya, Fir Maine Sandeep Se Kaha Ki Mujhe Peera Garhi Utaar De) but Sandeep did not get stop the car (Magar Sandeep Ne Car Nahi Rukvai) and from the side of Rohini took her at some farmhouse of Rani Khera (Aur Mujhe Rohini Ki Taraf Se Rani Khera Ke Kisi Farm House Mei Le Gaye). That here also Deepak Malik and Sandeep attempted to commit insult of her modesty (Battamiji) but she somehow releasing herself fled but then Sandeep and Deepak Malik forcibly put her in that Maruti Car and in the running car Deepak Malik forcibly committed rape on her in 5 of 235 6 FIR No. 63/06 PS - Kanjhawala the rear seat and at the time of committal of rape Sandeep had caught hold her hands and Manjeet was driving the car (Jo Yahan Par Bhi Deepak Malik Va Sandeep Ne Mere Saath Badtamizi Karne Ki Koshish Ki. Lekin Mai Kisi Tarah Chura Kar Bhagi Lekin Tabhi Sandeep Va Deepak Malik Ne Mujhe Zabardasti Usi Maruti Car Mei Daal Liya Va Mere Saath Chalti Car Mei Hi Deepak Malik Ne Peeche Ki Seat Par Mere Saath Zabardasti Balatkaar Kiya. Balatkaar Karte Waqt Sandeep Ne Mere Haath Pakad Liye Va Manjeet Gadi Chala Raha Tha). Then she somehow opened the window of the car and started screaming and at the time of occurrence Deepak Malik had also shown some pistol like thing and had threatened if she screamed too much then she will be killed (Fir Maine Kisi Tarah Gadi Ki Khidki Khol Di Aur Chillane Lagi Jo Ki Vaardaat Ke Waqt Deepak Malik Ne Mujhe Pistol Jaisi Chiz Dikhai Va Dhamki Di Ki Agar Zyada Chillai To Tujhe Jaan Se Maar Denge). As the window of the car opened and she screamed she was seen screaming by one Babaji. As the car slowed down she jumped down. During that time, some people tried to catch them but they after getting themselves released (Lekin Wo Chura Kar) again sat in the car and fled away. Someone phoned the police thereafter Police came.

6 of 235 7 FIR No. 63/06 PS - Kanjhawala Legal action be taken against Sandeep, Deepak Malik and Manjeet. She has heard, read her statement and is correct. IO SI Sudesh Dahiya recorded the statement of the victim girl in the presence of her sister Munmun who also signed the statement. On the basis of the statement of the prosecutrix and from the circumstances, finding that offences u/s 363/376 (2) (g)/506 IPC and u/s 25/54/59 Arms Act appeared to have committed, Tehrir was prepared and the case was got registered and the investigation was proceeded with by SI Sudesh Dahiya. During the course of investigation crime team was called and the inspection of the Maruti Car was got conducted. The exhibits handed over by the crime team were taken into police possession. Prosecutrix was got medically examined from Sanjay Gandhi Hospital, and the sealed exhibits handed over by the doctor after her medical examination were taken into Police possession. On the MLC No. 7193/06 of the prosecutrix, Doctor had endorsed "Alleged H/o sexual assault (being picked up by 3 boys in a car taken to a farmhouse and was raped by one of them in the moving car as she tried to run away from the farmhouse). On local examination of perineum ­ no external mark of injury present, hymen ruptured fresh torn. Bleeding present, on P/S examination a fresh tear is present on the 7 of 235 8 FIR No. 63/06 PS - Kanjhawala left lateral wall of vagina which is high up and bleeding." During the search of the Car No. DL­6CD­6807, two mobile phones bearing numbers 9899305610 and 9350513714 were recovered which were taken into Police possession. On finding sufficient evidence against accused Deepak Malik, Sandeep and Manjeet Singh, they were arrested and were got medically examined from Sanjay Gandhi Hospital and the sealed exhibits handed over by the Doctor after their medical examination were taken into Police possession. On the transfer of SI Sudesh Dahiya, further investigation was handed over to WSI Sanjita. During the course of further investigation WSI Sanjita recorded the statements of the witnesses u/s 161 Cr.P.C. The sealed exhibits were sent to the FSL. The call details and the ownership record of the seized mobiles were obtained. The owners of the mobiles were not traceable at the given address. Crime team report was obtained. Initially, section 25/54/59 Arms Act was added but, later on it was deleted on the instruction of the senior police officials as it was a toy pistol. Accused Manjeet Singh was also challaned u/s 100.2/177 M. V. Act for the tinted glasses on the Maruti Car No. DL­6CD­6807 used in the case. The said Maruti car was released on superdari to Sh. Jai Bhagwan Malik father of accused 8 of 235 9 FIR No. 63/06 PS - Kanjhawala Deepak Malik.

Upon completion of the necessary further investigation, challan for the offences u/s 363/376 (2) (g)/506 IPC and u/s 100.2/177 M. V. Act was prepared against accused Deepak Malik, Sandeep Yadav and Manjeet Singh and was sent to the Court for trial.

2. Since the offence under section 376(2)(g) IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.

3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under sections 363/366/376/(2)

(g)/506(II) IPC was made out against accused Deepak Malik, Sandeep Yadav and Manjeet Singh. Charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.

4. In support of its case prosecution has produced and 9 of 235 10 FIR No. 63/06 PS - Kanjhawala examined 24 witnesses. PW1 - Dr. P. C. Prabhakar, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi, PW3 - ASI Kanwal Singh, PW4 - Prosecutrix (name withheld), PW5 - HC Dilbagh Singh, PW6 - Constable Dalbir Singh, PW7 - ASI Suresh Chand, PW8

- Constable Ramesh Kumar, PW9 - Ranbir Singh, PW10 - Devraj, PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi, PW12 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Delhi, PW13 - Munmun, PW14 - Kamal Manna, PW15 - HC Balraj, PW16 - Prashant Sharma (Bobby) , PW17 - Inspector Ravi Singh, PW 18 - Deepak Mathur, PW19 - W/Constable Mukesh, PW20 ­ HC Tej Singh, PW21 - Israr Babu, Alternate Nodal Officer, Vodafone Essar Mobile Service Ltd., C­45, Okhla Phase - II, New Delhi, PW22 - HC Dalbir Singh, PW23 - Inspector Sanjeeta and PW24 - Inspector Sudesh Dahiya.

5. In brief the witnessography of the prosecution witnesses is as under :­ PW1 - Dr. P. C. Prabhakar, Sanjay Gandhi Memorial 10 of 235 11 FIR No. 63/06 PS - Kanjhawala Hospital, Mangol Puri, Delhi who deposed that on 22/05/2006, at about 1:50 a.m. prosecutrix (name withheld) D/o Kamal Manna, aged about 16 years was brought to Hospital by SI Sudesh for medical examination with the alleged history of sexual assault as told by the patient herself as well as Kamal Manna. He examined the patient and found no external injury on exposed parts and he referred the patient to Gynaecologist, on duty, for further examination and opinion. His MLC in this regard is Ex. PW1/A which bears his signatures at point 'B'.

PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi who deposed that she has seen MLC No. 7193 of patient/prosecutrix (name withheld) which bears medical examination notes in the hand of Dr. Monica as marked in Red. Dr. Monica has since left the services of Sanjay Gandhi Hospital and her present whereabouts are not known. She is however well acquainted with her (Dr. Monica) handwriting and signatures having worked along side her. The medical examination notes in the hand of Dr. Monica are Ex. PW2/B and bears her signatures at point 'A'.

11 of 235 12 FIR No. 63/06 PS - Kanjhawala PW3 - ASI Kanwal Singh, who deposed that on 21/05/2006, he was working as Duty Officer from 4:00 p.m. onwards till the night intervening 21/05/2006 and 22/05/2006. On that day, at about 7:15 p.m., he received a call from HC Jagdish of PCR that in a Maruti Car No. DL­6CD­6807, three boys have run away with a girl. He accordingly, recorded DD No. 27A, dated 21/05/2006 in this regard and informed about it to HC Balraj on telephone and sent a copy of the DD entry to him through Constable Dalbir for further necessary action. He has brought the 'Rojnamcha' containing original DD entry 27A. True copy of the same is Ex. PW3/A (original seen and returned). However, thereafter at about 12:15 a.m. in the night W/SI Sudesh Dahiya handed over to him a rukka Mark 'A' and on the basis of it he recorded FIR No. 63/06 under sections 363/376­2(G)/506 IPC r/w 25 Arms Act, 1959. after recording the FIR, he handed over copy of the same alongwith rukka to W/SI Sudesh Dahiya in the PS. He has brought register containing the original FIR. Carbon Copy of the same is Ex. PW3/B and it bears his signatures at point 'A' (original seen and returned). He also recorded DD No. 2A in the Rojnamcha with respect to the registration of the case. He thereafter made an endorsement to that effect in the rukka 12 of 235 13 FIR No. 63/06 PS - Kanjhawala and his endorsement thereof is Ex. PW3/C and bears his signatures at point 'A'. Vide DD No. 2A, he also asked SI Ravi Singh of Crime Team to go to the spot. He has brought the 'Rojnamcha' containing the original DD Entry No. 2A, photocopy of the same is Ex. PW3/D (original seen and returned).

PW4 - Prosecutrix (name withheld) is the victim who deposed regarding the incident and proved her statement made to the Police Ex. PW4/A, bearing her signatures at point 'A' and attestation of her statement Ex. PW4/A by her sister Munmun whose signatures thereunder are at point 'B', and deposed that she was medically examined at the SGM Hospital vide MLC Ex. PW1/A, and proved the seizure memo of her sport shoes and a condom used by accused Deepak from inside the car Ex. PW4/B bearing her signatures at point 'A', seizure memo of the seat cover of the car Ex. PW4/C, bearing her signatures at point 'A', seizure memo of a toy pistol Ex. PW4/D, bearing her signatures at point 'A', seizure memo of the Maruti Car used in the incident Ex. PW4/E, bearing her signatures at point 'A', seizure memo of two mobiles, one of NOKIA and other of Reliance LG, Ex. PW4/F, 13 of 235 14 FIR No. 63/06 PS - Kanjhawala bearing her signatures at point 'A', personal search memos of accused Sandeep, Deepak Malik and Manjeet Ex. PW4/G, PW4/H, PW4/J respectively, bearing her signatures at point 'A' each and she identified and proved her jeans of blue colour Ex. P1, two car seat covers Ex. P2(colly), toy pistol Ex. P3, LG Phone Ex.P4 and Nokia Phone Ex. P5.

PW5 - HC Dilbagh Singh, who deposed that on 22/05/2006, he was posted at PS - Kanjhawala as MHC(M). On that day, SI Sudesh Dahiya deposited 17 parcels out of which 11 were sealed with the seal of 'SGM Hospital' and six were sealed with the seal of 'SD' and two mobile phones make Nokia and Reliance LG in unsealed condition and a Maruti Car bearing No. DL­6CD­6807 for which he made entry in Register No. 19 at Serial No. 1301. On 22/06/2006, 16 sealed parcels (out of which 11 sealed with the seal of 'SGM Hospital' mentioned above and five were sealed with the seal of 'SD') were sent to FSL, Rohini through Constable Dalbir Singh vide RC No. 149/21 for which he made entry in Register No. 19 at Serial No. 1301. On 24/01/2007, there (these) parcels were received back by the then MHC(M) and an entry has been made by the then MHC(M) in that regard at the same Serial No. i.e. 1301. He has 14 of 235 15 FIR No. 63/06 PS - Kanjhawala brought original Register No. 19 in Court containing Entry No. 1301, copy of which is Ex. PW5/A (original seen and returned). He has also brought original RC Register containing RC No. 149/21, copy of which is Ex. PW5/B (Original register seen and returned). So long as case property remained with him nobody tampered with the same.

PW6 - Constable Dalbir Singh, who deposed that on 21­22/05/2006, he was posted as Constable in Mobile Crime Team, North­West District as Photographer. On that day, he alongwith Mobile Crime Team In­charge reached at PS - Kanjhawala at about 3:00 a.m., where one Maruti 800 of white colour bearing registration No. DL­6CD­6807 was parked in the Police Station. There, he, at the instance of IO W/SI Sudesh, he took 10 photographs of the car. The photographs are Ex. PW6/A1 to Ex. PW6/A10 and the negatives of the same are Ex. PW6/B1 to Ex. PW6/B10. IO recorded his statement.

PW7 - ASI Suresh Chand, who deposed that on 21/05/2006, he was posted as In­charge PCR Cdr. 69 and he was on duty from 8:00 a.m. to 8:00 p.m. At about 7:00 p.m. they received a call that one Maruti 15 of 235 16 FIR No. 63/06 PS - Kanjhawala car 800CC of white colour had ran towards Kanjhawala after taking a girl. Number of the car is DL­6CD­6807. Thereafter, they chased the car and the car ran towards village Karala and they stopped the car near School in village Karala. The two boys were apprehended from the car. The name of the boys came to know after inquiry as Sandeep and Deepak. The driver of the car ran away from the spot after leaving the car. They informed to the local Police and Addl. SHO, PS - Kanjhawala reached at the spot. After some time, SI Sudesh Dahiya also reached at the spot. They handed over the accused to them. From the search of the car one toy pistol was recovered. He handed over the toy pistol to the Police. IO seized the same and recorded his statement. He identified a toy pistol Ex. P3 and photographs Ex. PW6/A1 to Ex. PW6/A10.

PW8 - Constable Ramesh Kumar, who deposed that on 22/05/2006 he was posted as Constable in PS - Kanjhawala. On that day, on the instructions of IO SI Sudesh Dahiya, he took the accused Deepak Malik, present in the Court for medical examination to SGM Hospital, Mangol Puri. After medical examination of accused Deepak Malik, Doctor handed over to him four sealed pullindas alleged to be containing 16 of 235 17 FIR No. 63/06 PS - Kanjhawala undergarments, pubic hair, blood sample and sample seal, all were sealed with the seal of SGMH and he handed over the same to IO, which were seized vide memo Ex. PW8/A, bearing his signatures at point 'A'.

PW9 - Ranbir Singh, who deposed that on 22/05/2006, he was posted as Constable in PS - Kanjhawala. On that day, on the instructions of IO SI Sudesh Dahiya, he took accused Sandeep, present in the Court for medical examination to SGM Hospital, Mangol Puri. After medical examination of accused Sandeep, Doctor handed over to him four sealed pullindas alleged to be containing undergarments, pubic hair, blood sample and sample seal, all were sealed with the seal of SGMH and he handed over the same to IO, which were seized vide memo Ex. PW9/A, bearing his signatures at point 'A'.

PW10 - Devraj S/o Ishwar Singh R/o Village Rani Khera, Delhi, who deposed that he does not remember the exact date but it was in the year, 2006, he was standing in front of his house at about 7:00/7:30 p.m. He saw a Maruti 800 was coming from the side of Bus Stand towards his house and when the said Maruti Car 800 approached near his 17 of 235 18 FIR No. 63/06 PS - Kanjhawala house, he heard screaming of one girl inside the car. The said car passed through his house at high speed. The public persons were gathered at the chowk situated near his house. He made a call to the Police by dialing 100 No. from his mobile bearing connection no. 9213866512. He could not see the occupants of the car as the car was moving in high speed. He informed the PCR that he heard some noise from the Maruti car, which he did not like. No inquiry was made from him by the Police in connection with this case. He was also cross examined by the Learned Addl. PP for the State as he was resiling from his previous statement.

PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi, who deposed that he is posted as Sub­ Registrar in the above said Office. He has brought the birth registration pertaining to the year, 2001. the registration of one female girl namely prosecutrix (name withheld) daughter of Kamal Kumar Manna and Smt. Jharna Manna was made in the said Register on 29/12/2001 vide Registration No. 4111. The said entry was made on the direction of SDM, Punjabi Bagh vide order No. 2001/97, dated 19/12/2001. As per the entry, the date of birth of prosecutrix (name withheld) is 11/03/1991.

18 of 235 19 FIR No. 63/06 PS - Kanjhawala He has brought the original register, photocopy of relevant record is Ex. PW11/A. PW12 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Delhi, who deposed that on 22/05/2006, he was posted as Medical Officer in the Mortuary of Sanjay Gandhi Memorial Hospital. On that day, he medically examined one Manjeet, Deepak Malik and Sandeep Yadav brought by the Police for examination of sexual potency. The detailed medical examination report of Manjeet is Ex. PW12/A bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Deepak Malik is Ex. PW12/B bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Sandeep Yadav is Ex. PW12/C bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act.

PW13 - Munmun, is the sister of the prosecutrix, who 19 of 235 20 FIR No. 63/06 PS - Kanjhawala deposed that on 21/05/2006, she was present at her house. One telephone call was received at her residence from Rani Khera to the effect that prosecutrix (name withheld), who is her sister, had undergone some mishappening and she (prosecutrix) was present at their house. She (PW13) does not know the name of the person who gave the telephonic call on 21/05/2006. On receipt of the said call, she (PW13) alongwith her father Sh. Kamal Manna had reached at informed place at Rani Khera Village where prosecutrix (name withheld) was found present. Two Police officials were also present there. Inspector Sudesh was also present there. They came to know that her sister/prosecutrix was raped. Prosecutrix narrated her the entire incident. Prosecutrix had told her that the main culprit is Deepak who had raped her (prosecutrix) and two other boys helped Deepak in the commission of offence. Thereafter, they accompanied Inspector Sudesh and other Police officials to PS - Kanjhawala where Police had already apprehended two culprits. In the evening, she and her father had accompanied Inspector Sudesh and other Police officials in search of third culprit and Manjeet was apprehended by the Police from a village situated at Bawana side. Thereafter, they came back to the Police Station. Prosecutrix was taken 20 of 235 21 FIR No. 63/06 PS - Kanjhawala for medical examination at Sanjay Gandhi Memorial Hospital. Police had seized one panty of prosecutrix, one condom from the car in which the incident took place. The registration number of car was DL­6CD­6807 and it was Maruti 800. The exhibits were kept in a pullinda and some stamp was fixed on it but she (PW13) does not know where they were sent. She can identify all the three accused as she had seen two accused in the Police custody and third accused was arrested in her presence. She correctly identified all the accused present in the Court and also identified and proved the case property; Pistol Ex. P3 and two Mobile Phones Ex. P4 & Ex. P5. Some leading questions were also put to her by the Learned Addl. PP for the State after obtaining the permission of the Court.

PW14 - Kamal Manna is the father of the prosecutrix, who deposed that on 21/05/2006, at about 4:30 p.m., he received a phone call from a resident of Rani Khera that his daughter/prosecutrix (name withheld) has been raped in a vehicle. On receipt of phone call, he alongwith his elder daughter Munmun went to Rani Khera. They saw that Police persons were gathered at Rani Khera in front of a house.

21 of 235 22 FIR No. 63/06 PS - Kanjhawala Police was present there and had apprehended accused Sandeep and Deepak Malik both present in Court (whom he correctly identified). Thereafter, they came at Kanjhawala Police Station. After some time, ACP also reached at PS - Kanjhawala. Thereafter, he accompanied ACP and other Police officials in search of third accused at Bawana. The Police parked the vehicle outside the gali and apprehended accused Manjeet present in Court from his house in Bawana. Thereafter, they all came back to PS - Kanjhawala alongwith accused Manjeet. Thereafter, Police took his daughter/prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital. He remained in the Hospital during night as his daughter/prosecutrix was admitted there till next morning. Thereafter, ACP took him and his daughter/prosecutrix (name withheld) to DCP N/W Shri Sagarpreet Hooda. Police had prepared some documents. Thereafter, they went to PS - Kanjhawala and they remained there for two hours and thereafter they left. He has nothing else to say. Some leading questions were also put to him by the Learned Addl. PP for the State after obtaining the permission of the Court.

PW15 - HC Balraj, who deposed that on 21/05/2006, he was 22 of 235 23 FIR No. 63/06 PS - Kanjhawala posted at PS ­ Kanjhawala, Delhi. On that day, he was on emergency duty from 8:00 a.m. to 8:00 p.m. On receipt of DD No. 27A, he alongwith Constable Dalip Singh reached at Rani Khera main road, where one girl namely prosecutrix (name withheld) met him. She told him that she had been raped in a moving car by one of the person. There were three persons in the car and one of them had raped her. One was driving the car and another was sitting on the back seat. Prosecutrix (name withheld) also told him that those boys had thrown her on the road from the Maruti Car Registration No. DL­6CD­6807 of white color and thereafter those boys ran away towards Karala. The girl was perturbed at that time. She had told him the names of those boys but he does not remember. He passed the information to Senior Officers. After sometime, SHO and IO W/SI Sudesh Dahiya also reached at the spot to whom he handed over the girl. A leading question was also put to him by the Learned Addl. PP for the State after obtaining the permission of the Court.

PW16 - Prashant Sharma (Bobby), who deposed that in the year 2006, he was working as Senior Executive in a private company and 23 of 235 24 FIR No. 63/06 PS - Kanjhawala used to play Judo. Accused Sandeep present in the Court is his friend and was residing in his locality. Prosecutrix (name withheld) was also his friend. He knew her as she was also sports person and used to play at Bal Bhavan which is an organization near ITO. He had mobile phone number of prosecutrix (name withheld) on which they used to talk. Accused Sandeep had taken her mobile number from his mobile instrument. Accused Sandeep and prosecutrix (name withheld) used to talk with each other but, he cannot say about their talks.

PW17 - Inspector Ravi Singh, is the Incharge Crime Team, North West Distt. Delhi, who deposed that on 22/05/2006, he was posted as In­charge, Crime Team, N/W District, Delhi. On that day, at about 2:00 a.m., he was directed by the Control Room to reach at PS - Kanjhawala. Accordingly, he alongwith his team including Constable Suresh, Finger Print Proficient and Constable Dalbir, Photographer reached PS ­ Kanjhawala. The team was briefed by the IO W/SI Sudesh about the crime of rape committed in the moving car. Accordingly, he alongwith his team illuminated the tower light and search light and firstly, photographed the car bearing registration no. DL­6CD­6807 24 of 235 25 FIR No. 63/06 PS - Kanjhawala white Maruti Car in the premises of PS. During the inspection of the car, no chance prints could be detected. However, inside the car, one cherry color underwear, one rose colored condom and one pubis hair and six long hair were found alongwith other articles as mentioned in his report column No. 12. He handed over the same to the IO with the instructions to be followed by the IO for investigating the case. He prepared his report and handed over the same to IO. His report is Ex. PW17/A bearing his signatures at points 'A'.

PW18 - Deepak Mathur, who deposed that he knows accused Manjeet present in Court, as he was his school friend and still used to visit him. The date he does not remember, he received a call from PS - Kanjhawala and he was called at PS - Kanjhawala being friend of accused Manjeet. He alongwith his elder brother and cousin went to PS - Kanjhawala. The Police officials had told him that accused Manjeet had done something wrong and they asked him whether accused Manjeet had come to him day before that day. He had told them that accused Manjeet had not come to him during that days. Except this, no other inquiry was made from him. He was also cross examined by the 25 of 235 26 FIR No. 63/06 PS - Kanjhawala Learned Addl. PP for the State as he was resiling from his previous statement.

PW19 - W/Constable Mukesh, who deposed that on 21/05/2006, she was posted as Constable at PS - Kanjhawala. On that day, she alongwith W/SI Sudesh Dahiya reached at Rani Khera village on the information of HC Balraj. HC Balraj produced one girl namely prosecutrix (name withheld) aged about 16 years. Meanwhile, SHO, PS

- Kanjhawala also reached there. IO SI Sudesh Dahiya informed her that one message was received that two persons had been apprehended in a car at Karala Village. Thereafter, she alongwith SI Sudesh Dahiya and girl/prosecutrix (name withheld) reached at Karala Village where I/C PCR produced two boys namely Sandeep and Deepak, both present in Court as accused. One Maruti 800 Car bearing No. DL­6CD­6807 was also found there. She alongwith IO and girl/prosecutrix (name withheld) came at PS. IO recorded statement of prosecutrix (name withheld), on the basis of which case was registered. The girl/prosecutrix (name withheld) was taken to Sanjay Gandhi Memorial Hospital in her custody for medical examination. After medical examination, the Doctor handed 26 of 235 27 FIR No. 63/06 PS - Kanjhawala over her sealed pullindas and sample seal which she handed over to IO who seized the same vide seizure memo Ex. PW19/A bearing her signature at point 'A'. IO recorded her statement. A leading questions was also put to her by the Learned Addl. PP for the State after obtaining the permission of the Court.

PW20 ­ HC Tej Singh, who deposed that on 22/05/2006, he was posted as Constable at PS - Kanjhawala, Delhi. On that day, he took one person namely accused Manjeet for medical examination to Sanjay Gandhi Memorial Hospital. He correctly identified accused Manjeet present in the Court as was taken by him for medical examination. After medical examination, Doctor handed over him three pullindas sealed with the seal of Hospital of Govt. of NCT, Delhi and one sample seal which he handed over to IO who seized the same vide seizure memo Ex. PW20/A bearing his signatures at point 'A'. He handed over the accused to IO after medical examination. IO recorded his statement.

PW21 - Israr Babu, Alternate Nodal Officer, Vodafone Essar Mobile Service Ltd., C­45, Okhla Phase - II, New Delhi, who 27 of 235 28 FIR No. 63/06 PS - Kanjhawala deposed that he has brought the summoned record. As per their record, mobile no. 9899305610 is in the name of Surender Yadav R/o Village Khera, Delhi. The certified copy of ownership record is Ex. PW21/A. The call details of the said number from 19/05/2006 to 23/05/2006 is Ex. PW21/B and the certificate u/s 65(B) of the Evidence Act is Ex. PW21/C bearing his signature at point 'A'.

PW22 - HC Dalbir Singh, who deposed that on 21/05/2006, he was posted as Constable at PS ­ Kanjhawala and was on emergency duty from 08:00 a.m. to 8:00 p.m. with HC Balraj. At about 7:00 p.m. on receipt of DD No. 27A, he alongwith HC Balraj went to Rani Khera, Main Road where one girl met them who revealed her name as prosecutrix (name withheld). On inquiry, she told that she had been raped in a moving car by Deepak Malik and the car was driven by Manjeet and Sandeep Yadav who was also sitting in the car had caught hold her hands. She also told that she jumped from the moving car and raised alarm and one elder person had seem them. HC Balraj informed and explained the facts and circumstances to SHO. SHO also came there. Lady/SI Sudesh Dahiya also reached there. The girl/prosecutrix 28 of 235 29 FIR No. 63/06 PS - Kanjhawala (name withheld) was handed over to SI Sudesh Dahiya and HC Balraj left that place. One wireless message was received by SHO from PCR Commander 69 to the effect that the car involved in the incident had been recovered and that the driver of the car had fled away and that other two persons namely Deepak Malik and Sandeep Yadav had been apprehended by the PCR Officials. He alongwith SHO, SI Sudesh Dahiya and girl/prosecutrix (name withheld) reached near a School at Karala where I/C Van handed over two boys i.e. Deepak Malik and Sandeep Yadav present in Court correctly identified by him to IO. The I/C PCR Van handed over two mobile phones and one toy pistol stated to be recovered from the said car, to IO. The IO kept the pistol in white cloth pullinda and sealed the same with the seal of SI Sudesh Dahiya. Crime Team was called there. The mobile phones were also seized by IO vide seizure memo Ex. PW4/F bearing his signature at point 'B'. After completing the proceedings there, they came back at PS and thereafter the case was registered. Accused Deepak Malik was arrested vide memo Ex. PW22/A and accused Sandeep Yadav was arrested vide memo Ex. PW22/B, both bearing his signature at points 'A'. Their personal search was conducted vide memos Ex. PW4/H and G respectively, bearing his 29 of 235 30 FIR No. 63/06 PS - Kanjhawala signatures at points 'B'. Thereafter. The third accused namely Manjeet present in Court, correctly identified by him was arrested at the instance of prosecutrix from Dhandu Market, Bawana vide memo Ex. PW22/C, bearing his signature at point 'A' and his personal search was conducted vide memo Ex. PW4/J, bearing his signature at point 'B'. IO completed the other proceedings and prepared relevant documents. Accused persons were medically examined and were sent to Lockup. IO recorded his statement. On 22/05/2006 (be read as 22/06/2006), SI Sanjita received exhibits of this case from MHC(M) sealed with the seal of SGM Hospital vide RC number of which he does not remember and handed over the same to him for depositing the same at FSL, Rohini. Accordingly, he took the exhibits and deposited the same at FSL, Rohini and obtained the receipt thereof which he handed over to MHC(M) after coming back to PS. So long the case property remained in his possession, the parcels were not tampered with and seals remained intact. The copy of RC is already exhibited as Ex. PW5/B. PW23 - Inspector Sanjeeta, who is the subsequent Investigating Officer (IO) of the case, has deposed that on 25/05/2006, 30 of 235 31 FIR No. 63/06 PS - Kanjhawala she was posted as SI at Rape Crisis Cell, Sub­Division, Sultan Puri. On that day, investigation of this case was assigned to her. On 26/05/2006, she collected the age proof of prosecutrix and placed on record. She recorded statement of witnesses including Deepak S/o Harpal Singh. On 10/06/2006, she recorded statement of Devraj. On 22/06/2006, she got deposited the exhibits of this case to FSL through Constable Dalvir Singh. She collected the CDR and ownership of the mobile phones seized in the case. She recorded statement of witnesses, prepared challan and filed the same in the concerned Court. During the course of trial, she obtained result FSL and submitted the same in the Court. During her re­examination recorded on 07/04/2012, PW23 - Inspector Sanjita has deposed that on 16/08/2006, she came to know that phone number 9350513714 is in the name of Surender Kumar resident of RZF ­ 768/4B, Gali No. 8, Raj Nagar - II, Palam Colony, New Delhi and phone number 9899305610 is in the name of Surender Yadav resident of Village ­ Khera, New Delhi. She visited at the above address to verify and she came to know that one S. B. Singh son of Davinder Singh was residing at the address of Raj Nagar - II, Palam colony, New Delhi and the address of Surender Yadav was not found traceable. She collected the FSL 31 of 235 32 FIR No. 63/06 PS - Kanjhawala Result. The same is collectively Ex. PX (runs into three pages).

PW24 - Inspector Sudesh, who is the initial Investigating Officer (IO) of the case, has deposed that on 21/05/2006, she was posted at PS - Sultan Puri, Sub­Division of N/W District for the investigation of rape case. On the direction of the senior officer, she reached at Rani Khera, which was a place of occurrence on that day. SHO PS ­Kanjhawala, HC Balraj, Constable Dalbir and prosecutrix (name withheld) were found there. HC Balraj told the facts to her. Meanwhile, Kamal Manna and Munmun, father and sister of prosecutrix also reached there. She came to know that accused ran away towards Karala area. Meanwhile, SHO, PS - Kanjhawala received message on his wireless set that two accused have been apprehended by the PCR near Karala School with Maruti - 800 Car. Thereafter, they all reached there, where PCR Incharge HC Suresh produced one Maruti Car bearing Car DL­6CD­6807 of white colour and two persons namely Deepak Malik and Sandeep. Prosecutrix identified these two persons by their names. HC Suresh also produced toy pistol, which according to him recovered from the Maruti Car. She prepared a sketch of toy pistol which is Ex.

32 of 235 33 FIR No. 63/06 PS - Kanjhawala PW24/A which bears her signature at point 'A'. Measurements of the pistol have been taken by her and thereafter it was kept in a pullinda and sealed with the seal of 'SD' and same was seized vide seizure memo Ex. PW4/D which bears her signature at point 'B'. Thereafter, they returned back to PS - Kanjhawala. She recorded statement of prosecutrix which is Ex. PW4/A and her (prosecutrix) signature at point 'A'. She (PW24) put her signature at point 'C'. Munmun also put her signatures at point 'B'. She made endorsement vide Ex. PW24/B which bears her signature at point 'A' and handed over same to Duty Officer of PS - Kanjhawla for registration of FIR. She interrogated both the accused Sandeep and Deepak who revealed the name and particulars of third accused Manjeet. Thereafter, she alongwith prosecutrix, Lady Constable Mukesh reached at SGM Hospital and her medical examination was conducted by the Doctor and the exhibits of the case were handed over to her by the concerned Doctor which were seized vide Ex. PW19/A which bears her signature at point 'B'. Thereafter, they returned back to PS and Crime Team officials were found present there. SI Ravi Singh, I/C Incharge Crime Team inspected the Maruti Car and after inspection handed over to her back side seat cover of the said car. She made the pullinda of the 33 of 235 34 FIR No. 63/06 PS - Kanjhawala said seat cover by keeping in a cloth and sealed with the seal of 'SD' and seized vide seizure memo Ex. PW4/C which bears her signature at point 'B'. SI Ravi Singh also produced one old handkerchief and one panty of maroon colour and prosecutrix identified the same to be belonging to her, and one used condom and one pair of the sport shoes. She kept these four articles in separate clothes and prepared four pullindas and sealed with the seal of 'SD' and seized the same vide seizure memo Ex. PW4/B, which bears her signature at point 'B'. Crime Team Photographer took photographs of the Maruti Car. She also inspected the Maruti Car and found two mobile phones one was of Nokia make and another was of Reliance LG. She seized the same vide seizure memo Ex. PW4/F bearing her signature at point 'C'. Accused Deepak Malik and Sandeep were thoroughly interrogated and thereafter, both of them arrested vide Ex. PW22/A and Ex. PW22/B respectively, which bear her signatures at point 'B' and their personal search were conducted vide memos Ex. PW4/H and Ex. PW4/G respectively, which bear her signatures at point 'C'. Thereafter, she accompanied with the prosecutrix and staff went to Bawana area in search of third accused Manjeet, who was found present at his house and he was identified by the prosecutrix 34 of 235 35 FIR No. 63/06 PS - Kanjhawala and after interrogating him, he was arrested vide Ex. PW22/C and his personal search was conducted vide Ex. PW4/J, which bear her signature at point 'C' and thereafter, they returned back to PS. All the three accused were sent to SGM Hospital with Constable Ranbir, Constable Ramesh and Constable Tej Singh for their medical examination. After their medical examination, they were brought back to the PS and the above said Constables handed over MLCs to her. Constable Ranbir handed over exhibits of accused Sandeep to her which was seized by her vide Ex. PW9/A, which bears her signatures at point 'B'. Constable Ramesh handed over exhibits of accused Deepak Malik to her which was seized by her vide Ex. PW8/A, which bears her signatures at point 'B'. Constable Tej Singh handed over exhibits of accused Manjeet Singh to her which was seized by her vide Ex. PW20/A, which bears her signatures at point 'B'. She recorded the statement of prosecutrix, her sister and father. Thereafter, all the three accused persons were produced before the Court and they were sent to JC. She deposited the seized articles in the Malkhana. She recorded the statement of other persons. Thereafter, she was transferred from the PS and she handed over the case file to SI Sanjita. She correctly identified accused Deepak Malik, 35 of 235 36 FIR No. 63/06 PS - Kanjhawala Sandeep Yadav and Manjeet Singh, present in the Court. She identified the seat covers of Maruti Car Ex. P2, one white colour handkerchief Ex. PW24/1, one pair of sports shoes make TREND Ex. PW24/2, one Toy Pistol Ex. P3, one condom of pink colour Ex. PW24/3, one mobile phone make Reliance LG Ex. P4, one mobile phone make NOKIA Ex. P5, one maroon colour panty (ladies underwear) alongwith one cloth Ex. PW24/4. Identity of the Maruti Car No. DL­6CD­6807, not disputed by the Learned Defence Counsel, which is Ex. PW24/5 and she (IO) deposed that the photographs of the car, taken by the Crime Team Photographer are already Ex. PW6/A1 to Ex. PW6/A10 (collectively).

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.

6. Statements of accused Deepak Malik, Sandeep Yadav and Manjeet Singh were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused did not opt to lead any defence evidence.

36 of 235 37 FIR No. 63/06 PS - Kanjhawala

7. Learned Counsel for accused Deepak Malik submitted that accused Deepak Malik was not arrested in the presence of prosecutrix and he was shown to her in the PS on next day. The IO did not take any precaution to keep him in muffled face and no TIP was got conducted. He further submitted that prosecutrix in her cross­examination has admitted it to be correct that she had been briefed by the IO before entering the Court Room as to what she was required to state, which goes to show that she was a tutored witness. She was further cross­examined on the material particulars of her examination­in­chief and was duly confronted with her earlier statements wherein most of the allegations leveled by her were not found recorded. He further submitted that no recoveries whatsoever were made in the presence of the prosecutrix and the entire proceedings have been fabricated and manipulated to suit the nefarious ends of the Investigating Agency. He further submitted that the Mobile Phone allegedly recovered from Maruti Car is not connected to him. He further submitted that there is no other scientific/expert evidence which may go to connect the said accused with the alleged offences. The owner of the Maruti Car was never produced in the witness box to establish as to (who) was in possession of aforesaid Car at 37 of 235 38 FIR No. 63/06 PS - Kanjhawala the time of alleged incident. He further submitted that the age of the prosecutrix has not been properly established to show as to base upon which documents/proofs her date of birth was registered with MCD. As such based upon bald assertion of the prosecutrix that she was raped by this accused cannot be said to be established. He further submitted that no injuries were found either on the body of prosecutrix nor that of accused Deepak Malik. He further submitted that prosecution has failed to prove its case and the accused Deepak Malik deserves clean acquittal on all the charges levelled against him.

8. Learned Counsel for accused Manjeet submitted that the complainant herself has declared her age as 16 years in FIR which is exhibited as Ex. PW3/B, the certificate of MCD and educational institution has been exhibited but have not been proved by prosecution witnesses nor the author of the School Certificate has been examined. The Sub­Registrar Birth and Death MCD in his statement as PW11 has proved the document as Ex. PW11/A, however no prudent and cogent evidence has been placed on record of birth such as of a Hospital or otherwise other means of birth has not been disclosed. Learned Counsel 38 of 235 39 FIR No. 63/06 PS - Kanjhawala further submitted that PW4 is the prosecutrix (name withheld) and the eye witness and first of all the prosecutrix has made a statement before the Court on 31/01/2009 where her statement is full of contradictions inconsistencies, irregularities, additions, subtractions and her statement is devoid of even a grain of truth, genuinity and cogency. In her cross­ examination she states that "I had come to the PS when Manjeet was shown to me at around 10:00 a.m. on the next day of the incident". Whereas according to arrest memo, the accused Manjeet was arrested from his house at 11:30 a.m. on the next day of the incident. Learned Counsel submitted that there is a distance of about 15­17 kms. from the house of the accused to the PS and the area is highly congested and it probably takes normally 45­55 minutes of travel to reach the PS - Kanjhawala from the house of the accused, which is inconsistence and contradicted and not inspiring (confidence) while (when) compared to her statement as mentioned above. Learned Counsel further submitted that according to charge­sheet, the accused Manjeet was arrested at the instance of the prosecutrix. It is also stated in charge­sheet that the accused Manjeet was apprehended from his house and at that time the IO (was) accompanying with the prosecutrix and some Police officials, 39 of 235 40 FIR No. 63/06 PS - Kanjhawala whereas in the cross­examination of PW4, she stated that "after the medical examination, I was taken to the PS directly where accused Manjeet was shown to me. At that time accused Manjeet was sitting in one room of the PS alongwith some Police officials. I have not given the physical description of accused Manjeet in my statement to the Police." It is further stated by the prosecutrix in the cross­examination that "I and my parents were called to the PS on the next day at around 11:00 a.m. or so by the SHO. At that time only accused Manjeet was present in the PS." Learned Counsel submitted that PW13 - sister of the prosecutrix stated on SA that "I and my father had accompanied Inspector Sudesh and other Police officials in search of third culprit and Manjeet was apprehended by the Police from Bawana side." Learned Counsel submitted that neither sister and father of the prosecutrix nor the IO or other Police officials had any description of the accused Manjeet as stated by the prosecutrix in her statement that she had not given any physical description of accused Manjeet in her statement to the Police. Learned Counsel further submitted that PW14, father of the prosecutrix stated on SA that "I accompanied ACP and other Police officials in search of the third accused at Bawana. The Police parked the vehicle 40 of 235 41 FIR No. 63/06 PS - Kanjhawala outside the gali and apprehended accused Manjeet present in the Court today from his house in Bawana. Thereafter, we all came back to PS - Kanjhawala alongwith accused Manjeet. Thereafter, Police took my daughter/prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital." Learned Counsel submitted that it is crystal clear that the accused Manjeet was arrested prior to the medical examination of the prosecutrix. Learned Counsel further submitted that PW7 - ASI Suresh Chand stated on SA that "On 21/05/2006, I was posted as In­charge PCR Cdr. 69 and I on duty from 8:00 a.m. to 8:00 p.m. at about 7:00 p.m. we received a call that one Maruti car 800CC of white colour had ran towards Kanjhawala after taking a girl. Number of the car is DL­6CD­6807. Thereafter, he chased the car and the car ran towards village Karala and they stopped the car near School in village Karala. The two boys were apprehended from the car. The name of the boys came to know after inquiry as Sandeep and Deepak. The driver of the car ran away from the spot after leaving the car." Whereas, the prosecutrix stated on SA that "I was crying and raising a lot of hue and cry then one old aged person saw me and heard me and he along with a number of other ladies who were also standing nearby asked some boys 41 of 235 42 FIR No. 63/06 PS - Kanjhawala who were present there with their motorcycles to save me. However, the said boys did not stop the car and upon which some motorcyclists went ahead and made the car to stop after they parked their motorcycle on the way of the car. After great persuasion only and that too when the ladies threw stones on the car that the doors of the car were opened and I as a result fell down on the road. However, Deepak and Sandeep were caught hold off by the persons present over there but Manjeet fled away from the spot after leaving the car over there. I was taken to the house of the said old aged person by the villagers and after some time Police came over there". Learned Counsel further submitted that the PW10 - Dev Raj, Public Witness and the PW18 - Deepak Mathur, Public Witness did not support the story of the prosecutrix and Police officials, as they became hostile. Learned Counsel further submitted that PW20 - HC Tej Singh who took the accused Manjeet for medical examination to Sanjay Gandhi Memorial Hospital, was failed to identify the accused Manjeet in the Court room, whereas the accused was clearly visible and stand nearby with him hardly distance of 5­10 ft. alongwith other two accused persons only. Learned Counsel further submitted that there is no incriminating allegation or evidence which has been put on the record 42 of 235 43 FIR No. 63/06 PS - Kanjhawala either in the statement of the prosecutrix or in her statement exhibited as PW4/A against accused Manjeet and that there are no allegations of rape against the accused and that the accused Manjeet has been falsely implicated, framed up in the fake and false case and deserves to be acquitted on all the charges levelled against him.

9. Learned Counsel for accused Sandeep Yadav submitted that in the present case the complainant is a free lancer and was a judo student, the complainant is a call­girl, free lancer, play girl, has (as) depicted in the statement by PW4 also complainant has admitted that the complainant was (in) a close friendship of Mr. Bobby who has been witnessed by the prosecution as PW16 - Prashant Sharma, in a lust to have more friendship to enjoy the life and earn money the complainant requested Bobby to arrange meeting with his other friends as the girl was free lancer managed to have mobile numbers of accused Sandeep Yadav as admitted in her own statement used to talk with accused Sandeep Yadav for more than 10­15 times in a day, prior to the alleged day of incident 15­20 days before the complainant talked on phone and not only talked on phone but met him and the both the complainant and accused 43 of 235 44 FIR No. 63/06 PS - Kanjhawala Sandeep Yadav spent some time together. It is the concocted story of prosecution emanating out of afterthought roping the accused for no offence committed by them. With the consent and wishes the complainant went with the accused to pass some time having no intention to commit crime and no force was ever used by accused Sandeep Yadav or any other accused and nothing was done which amounts to abet or attempt to rape has been done. It is the duty of the prosecution / complainant / accused to being all the truth before the Court and not to suppress any vital and important facts which narrates the concoction of the story as the phone calls through PW21/B has been summoned only for 19/05/2006 to 22/05/2006 (be read as 19/05/2006 to 23/05/2006) nor for the last one month period since that would have been revealed the truth that in a day the complainant used to have calls more than 20 times a day and complainant severally met with the accused Sandeep Yadav, hence in the present circumstances no force ever has been applied which can be ascertained from the perusal of records/evidence in record, rather it was the complainant who of however own joined the company of the accused and when the PCR had a information of such girl inside the car was following the Car and being 44 of 235 45 FIR No. 63/06 PS - Kanjhawala afraid of the Police the story has been concocted and the Police also made a best effort to settle the matter among the accused and the complainant and between them but when the things could not went in the way the Police wanted the story in collusion with the complainant was planted. Learned Counsel further submitted that as per the complainant statement the accused Sandeep Yadav called her at about 4:00 p.m. and induced her that Bobby was standing at Nangloi Bus Stand, the complainant never made a call to Bobby being very close friend of Bobby, the resilience to go has been described but immediately the complainant being literate girl, knowing all spheres of life, trusted the accused, again improved by the prosecution, even the Bobby did not meet the complainant at Nangloi Bus Stand she continued in the company of accused Sandeep Yadav, truly if the version would have true the complainant had returned to her home of her own, it is to be mentioned that the Nangloi Bus Stand or the shop of Aggarwal Sweet is having too much of crowd and always nearing 30 to 50 persons are always present there, it is the own version of the complainant that two other persons were sitting in the car despite that complainant boarded the car to go the Peera Garhi, as per the prosecution story the Sandeep told the 45 of 235 46 FIR No. 63/06 PS - Kanjhawala complainant that the two boys will de­board the vehicle on its way to Peera Garhi, despite not founding Bobby at Peera Garhi the complainant did not went back to her home but continued to sit in the vehicle and have claimed that all the three boys resisted and forced her to sit in the vehicle and locked the Maruti Car, however, there exists no system in Maruti­ 800 vehicle which can lock the gates and all the four occupants are allowed to open the lock since it is by only a knob, the complainant of her own kept sitting in the vehicle which is owned by the accused Deepak Malik and was having ad­idem with the present person in the vehicle, no use of force is assessable as alleged since two of the boys were sitting on front seat they cannot force or with hold the complainant it was only accused Sandeep Yadav, if the story of the complainant is believed that accused Sandeep Yadav was also a stranger how could she believed the accused, both complainant and the accused were having independent doors to flee or keep close, the complainant is a judo player and is versed with the judo activities which at least could have provided self defence to the complainant, the said area of Peera Garhi is so crowdie (crowded) during all 24 hours of the day and night that any such incident for force abduction/kidnapping as alleged is not possible, the 46 of 235 47 FIR No. 63/06 PS - Kanjhawala complainant had ample time to get rid of the accused without any hue and cry. Learned Counsel further submitted that in peak hours it is very much impossible to travel under force and that too the abducted lady in a Maruti vehicle which can be opened at any time. During the travel from Peera Garhi to Rani Khera more than 7 Red Light signal comes on the way the vehicle must have stopped no efforts were made or any hue or cry was attempted to seek public help, on the way more than 3 to 4 Police Gypsy are always on patrol no assistance was ever requisitioned. Learned Counsel further submitted that the story concocted by the prosecution has no substance as the complainant asserts that she was taken to a farm house and Deepak started molesting her and on a gun point the clothes were asked to be taken off and in the same condition the complainant was forced or put to enter in the vehicle which is beyond imagination and away from probabilities, a judo player can handle more than four boys, in the present case on the rear seat only one Deepak was sitting, to rope in the Sandeep the complainant has alleged that the accused Sandeep caught her hand while sitting on the from non driving seat which in a vehicle Maruti - 800 is far from possibility and no such holding as alleged is possible since the cabin of the Maruti Car of seat is 47 of 235 48 FIR No. 63/06 PS - Kanjhawala not more than 5 feet and on the rear seat a rim of steepny was also lying, in a cabin of 20'' X 20'' from non driving side to rear of driving side no one can hold or catch or restrain anybody. Learned Counsel further submitted that the complainant witnessed as PW4 in her statement has declared that at Rani Khera, one old person alongwith some ladies asked some boys to help the complainant and the said boys and ladies stopped them and ladies threw stones on the Car, the prosecution has not put any public witness who were eye witness and as per the statement of the complainant were present there at the site of arrest of accused Sandeep Yadav and other co­accused. Learned Counsel further submitted that the statement of the complainant deals that her shoes were unfastened and were lying in the Car where they were unfastened is not said anywhere and why the Police impounded the shoes. Even after the stones were pelted on the car in the mechanical inspection no glass broken has been reported. The vehicle was seized immediately after the alleged incident in presence of complainant, while the time (is) of essence in such offences but nowhere the prosecution has stated the duration of time and how the jeans and underwear in a rear seat can be unfastened and where the same were unfastened is not clear from the statement, where the 48 of 235 49 FIR No. 63/06 PS - Kanjhawala condom was worn as alleged, who had the condom, the purchase of the said condom has not been put on record by the Police/prosecution authorities, the wrapper or blank packet of condom was even not reported, the mobile of the complainant has not been seized and put as evidence and no record of calls have been made available by the prosecution, the alleged offence is of kidnapping, extortion, gang rape, in such a heinous offence the prosecution shall have taken care of the evidence appropriately to enable the Court to do justice. Learned Counsel further submitted that complainant boarded the alleged vehicle where the rape has been alleged, of her own and no force was addicted in that and it is the version and statement of complainant that the complainant associated the accused at 4:00 p.m. and the vehicle was running the busy and crowded roads of Delhi from Nangloi to Peera Garhi, Peera Garhi to Rani Khera and in the area of Rani Khera itself the vehicle kept on running between 4:00 p.m. to 7:00 p.m. no resistance was ever shown by the complainant during this voyage of 4:00 p.m. to 8:00 p.m., further it is the evidence on record that the vehicle was chased by the Police PCR Van. Learned Counsel further submitted that the complainant was introduced to accused Sandeep Yadav by PW16.

49 of 235 50 FIR No. 63/06 PS - Kanjhawala Learned Counsel further submitted that the prosecution has not seized the mobile phone of the complainant which could have established the cordial relations between the accused persons and the complainant. Learned Counsel further submitted that the present case is of collective friendship outing turned into Gang Rape the age of the complainant was herself informed more than 16 years and the girl in appearance was looking with physique as 18 years or is actually of 18 years. Learned Counsel further submitted that the condom alleged to be used as stated (seized) by PW4/B, nowhere it is described or explained either was packed, when unpacked, when was wear prior to taking off the jeans by the accused was worn or after the putting off the jeans the said was used and how in a Maruti Car can be wore (worn), who bought and brought the condom the complainant herself or the alleged accused is a mystery. Learned Counsel further submitted that even if the prosecution version is upheld the complainant jumped down from the running car no brush (bruise), injury was found and in the statement given u/s 160 (be read as u/s 161 Cr.P.C.) the complainant says that while the vehicle was stopped with the help of villagers the complainant left the vehicle, shoes were lying in the vehicle when the shoes were unfastened, such kind of taking 50 of 235 51 FIR No. 63/06 PS - Kanjhawala off shoes takes place when consent is with willingness the incident happens, the complainant kept on meeting with accused Sandeep Yadav is admitted in Ex. PW3/C (be read as Ex. PW4/A). Learned Counsel further submitted that the vehicle seats were having head rests and it is admitted by the PW4 complainant in Ex. PW3/C (be read as Ex. PW4/A), that the accused Sandeep Yadav was sitting on non driving front seat (commonly known as conductor seat) it is alleged that the hands of complainant were caught while sitting on the seat in Maruti 800 vehicle having a box area of 58'' X 30'' cannot hold the hands as alleged. Learned Counsel further submitted that as per Ex. PW3/C (be read as Ex. PW4/A) the prosecution has held that the complainant jumped from the vehicle. Learned Counsel further submitted that the old person somewhere named as Babaji, Masterji, Old Man has not been examined who is an eye witness, knows all the truth. Learned Counsel further submitted that statement of complainant/prosecutrix Ex. PW3/C (be read as Ex. PW4/A) has been recorded in the Police Station and not at site, no time has been mentioned in the statement, no other person shown as witness. Learned Counsel further submitted that the Police kept all the process in pending till 1:00 p.m. such as MLC, registration of FIR, 51 of 235 52 FIR No. 63/06 PS - Kanjhawala arresting the accused, sealing of the evidences, statements of witnesses to wait any settlement between the accused, complainant and Police, otherwise the case as is before the Court was fabricated, concocted and registered as was warned by the Police authorities and all the means and evidence were prepared and the entire story was knitted which is apparent from the statements taken u/s 161 (be read as u/s 161 Cr.P.C.) and as witnesses to the case, Police ignoring the vital pieces of substance and evidence such as the second underwear, existence of condom, mobile of prosecutrix, shoes unfastened in what circumstances, possibility of interaction among the complainant and accused since long last, putting the call record for only two accused from three days, working of mobile of two accused till 22/05/2006 despite surrender and seized immediately at 7:00 p.m. on 21/05/2006, planting of toy pistol, how the toy pistol was found in vehicle when the allegiance (allegation) is that the accused committing rape threatened the complainant with that toy pistol. Learned Counsel further submitted that no finger prints have been drawn from the car or the pistol. Learned Counsel further submitted that as per Ex. PW3/C (be read as Ex. PW4/A), the vehicle is shown as recovered from accused Sandeep Yadav and Deepak Malik, no specific averments 52 of 235 53 FIR No. 63/06 PS - Kanjhawala are made from which place the pistol was recovered. Learned Counsel further submitted that in Ex. PW3/C (be read as Ex. PW4/A), the time mentioned is 4:00 p.m. to 7:00 p.m. wherein the time is shown as 8:30 p.m. Learned Counsel further submitted that the complainant did not have any knowledge of the toy pistol but the Police kept on fabricating the recovery of pistol without taking the finger prints from the pistol and framed the Section 25 of 1959 under the Arms Act to threaten the accused to bow down and threatening to implicate falsely which they did. Learned Counsel further submitted that despite the presence of the huge public at site the mobiles have been seized without taking the public witness since the mobile of the prosecutrix had to be abandoned. Learned Counsel further submitted that all the recoveries are made on 22/05/2006 wherein the recoveries were under the possession immediately on 21/05/2006, further no time has been mentioned in the fird of recovery. Learned Counsel further submitted that PW1 - Dr. P. C. Prabhakar states that the complainant/victim was brought to the Hospital only at 1:50 a.m. of 22/05/2006. Learned Counsel further submitted that the 5th wheel called a steepny was lying on the rear seat of the vehicle as shown in Ex. PW6/A1 to A10 leaving no place on the rear seats for an 53 of 235 54 FIR No. 63/06 PS - Kanjhawala offence as alleged. Learned Counsel further submitted that Jama Talashi is carried just before the arrest and the arrest of accused Sandeep Yadav and Manjeet Singh was made at 7:30 p.m. whereas the Ex. PW4/9 (be read as Ex. PW4/G) establishes the recovery on 22/05/2006, the arrest is claimed on 8:30 a.m. on 22/05/2006 the violation of Section 51 of Cr.P.C. has been committed. Learned Counsel further submitted that no finger test of cubical, kit or instrumental new method applied on prosecutrix to adjudge the virginity or puberty of the female gynaecology which could have established the routine of the prosecutrix in sexual affairs. Learned Counsel further submitted that MLC conducted on accused Sandeep Yadav does not reveal anything which can prove anything which constitutes the offence of rape, the involvement if the said rape is called gang rape (in) the statement of prosecutrix it has been alleged that the accused Sandeep Yadav has been bitten by tooth but the MLC of accused Sandeep Yadav exhibited as Ex. PW12/C specially mentions that there are no marks of tooth bite as alleged. Learned Counsel further submitted that in Ex. PW19/A establishes jeans and underwear of brown colour wherein the CFSL (be read as FSL) pullinda when opened the colour of underwear was 54 of 235 55 FIR No. 63/06 PS - Kanjhawala Marjenda while the same was packed was claimed as blue colour. Learned Counsel further submitted that the complainant made calls to the accused Sandeep Yadav on 19/05/2006 more than 7 times and reciprocally the accused also dialed to complainant. Learned Counsel further submitted that if the story of the prosecution is believed it is very strange in such a heinous offence why the delay was caused in sending the articles to CFSL (be read as FSL) which was sent on only 26/06/2006. Learned Counsel further submitted that in the report furnished by Forensic Science Laboratory nothing adverse has been found which can constitute the offence of rape on accused Sandeep Yadav. Learned Counsel further submitted that there are no evidence on record which proves the accused Sandeep Yadav as guilty of any offence charged u/s 363 (be read as u/s 363 IPC). Learned Counsel further submitted that the contents of Ex. PW21/B reveals that from the mobile of accused Sandeep Yadav, 19 times calls were made on the victim mobile, it is to be mentioned that the mobile recovered from accused Deepak Malik, bearing no. 9350513714 which was having conference facility through which the accused Deepak Malik and Sandeep Yadav and the victim used to talk frequently and approximately have talked 55 of 235 56 FIR No. 63/06 PS - Kanjhawala more than 100 times during 18/05/2006 to 21/05/2006, the mobiles of both the accused were seized at the time of actual arrest which was at about 5:30 p.m. on 21/05/2006 but the records of mobile shows that the said mobile continued till 07 hours 32 minutes 24 seconds of 22/05/2006. Learned Counsel further submitted that the prosecutrix has never alleged any offence of rape of (by) the accused Sandeep Yadav, nor the identity of accused Sandeep Yadav has ever been established, none of the act constitutes the offence punishable u/s 363/366/506­II of IPC. Learned Counsel further submitted that the association of accused Sandeep Yadav and accused Deepak Malik is not independent and the complainant and the accused Deepak Malik was (were) friend (friends) known to each other, no such act has been committed by the accused Sandeep Yadav which might have facilitated in the offence as alleged on main accused Deepak Malik, no abetment or accomplishment has been proved nor the association of the accused Sandeep Yadav has helped to commit the alleged offence hence the same is not covered under the definition of Gang Rape, punishable under Section 376 (2)(g) of Indian Penal Code. Learned Counsel further submitted that the accused have already faced the humiliation and trouble of trial for the last 8 years and 56 of 235 57 FIR No. 63/06 PS - Kanjhawala has respect towards the Courts and law of the land for which the accused is duty bound, in the present case pending adjudication the accused Sandeep Yadav already has faced the judicial custody for approximately 5 years. Learned Counsel further submitted that the contradictions and variations in the statements of several witnesses proved that the accused Sandeep Yadav has been falsely charged and implicated in the present case and no act of the accused constitutes the offences charged with. Learned Counsel further submitted that the PW18 being the witness of prosecution totally controverted the concocted story of the prosecution and the prosecution has caused the resiling from the statement wherein the witness has deposed that he never gave any statement, in such a mechanical way the investigating agency after inquiring from the accused Manjeet since it is only on 22/05/2006 threatening to the accused and forcing the accused to give the details of friend has fabricated the story which proves the idiom that Police can make a rope snake and snake a rope. If the version of PW18 is relied upon the rape never occurred and the entire story seems concocted due to the contradictions in the statements of witnesses. Learned Counsel further submitted that the accused Deepak Malik was known to complainant 57 of 235 58 FIR No. 63/06 PS - Kanjhawala though in past through accused Sandeep Yadav but it was mere a friendship and no meeting of mind or agreement between the other accused ever existed to commit a crime, since the complainant was common friend of accused Deepak Malik and accused Sandeep Yadav and it was only on request of the accused Deepak Malik never having any intention to commit crime just to wander here and there and to pass the time the accused Sandeep Yadav associated with accused Deepak Malik and Manjeet having no common intention to commit a crime and never it is nurtured common intention and nowhere the complainant has alleged any nurturing act against the accused Sandeep Yadav other than that while sitting on non driver front seat caught hold of her hand which is never possible while sitting on a seat mounted with head rest it is impossible to caught hand to facilitate the putting off the jeans as alleged or to commit any crime, the such allegation have no cogent probability and sustainability hence as held by various High Courts and Supreme Court of India the act of the accused Sandeep Yadav does not fall under the ambit of Section 376 (2)(g) of IPC or in any other sections under which the accused Sandeep Yadav is charged.

58 of 235 59 FIR No. 63/06 PS - Kanjhawala Learned Counsel referred to the cases and are reported as 'Dharmender @ Bindu; Kailash Versus State' 2012 CrLJ 35, 'Krishan Kumar Malik Vs. State of Haryana' AIR (SC) 2877, 'State Vs. Suresh Kumar & Anr.' 2010 LE (Del) 502, 'Hanuman Prasad & Ors. Vs. State of Rajasthan' 2008 (Supp.) AIR (SC) 1107 and 'Rai Sandeep @ Deepu Vs. State of NCT of Delhi' 2012 (8) SCC 21.

10. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.

11. I have heard the Learned Addl. PP for the State and Sh. R. N. Sharma, Learned Counsel for accused Deepak Malik, Sh. Raja Beriwal, Learned Counsel for accused Sandeep Yadav and accused Manjeet Singh and have also carefully perused the entire record.

59 of 235 60 FIR No. 63/06 PS - Kanjhawala

12. The charge for the offences punishable u/s 363/366/376(2)

(g)/506(II) IPC against accused Deepak Malik, Sandeep Yadav and Manjeet Singh is that on 21/05/2006 from 4:00 p.m. to 7:00 p.m. in a running maruti car bearing no. DL­6CD­6807, within the jurisdiction of PS - Kanjhawala, they all in furtherance of their common intention kidnapped a girl/prosecutrix (name withheld), aged 16 years with an intention to seduce her to illicit intercourse and they all also committed gang rape with her by threatening her with threat to kill her.

13. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.

AGE OF THE PROSECUTRIX

14. PW4 - prosecutrix in her examination­in­chief recorded on 13/02/2008 has deposed that :­ "My date of birth is 11/03/1991. Witness had identified 60 of 235 61 FIR No. 63/06 PS - Kanjhawala her CBSE Admit Card of class ninth bearing her photograph to be her and the said admit card is Ex. PX1."

During her cross­examination dated 31/01/2009, PW4 - prosecutrix has deposed that :­ "I have one sister only. My parents got married about 30 years ago. My sister Munmun was born after 7 years of the marriage of my parents. I am four years younger to her. My father filed an affidavit at the time of my admission in the School regarding my age."

There is nothing in her cross­examination of PW4 - prosecutrix so as to impeach her creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of accused.

PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi has deposed that he is posted as Sub­ Registrar in the above said Office. He has brought the birth registration pertaining to the year, 2001. the registration of one female girl namely prosecutrix (name withheld) daughter of Kamal Kumar Manna and Smt. Jharna Manna was made in the said Register on 29/12/2001 vide 61 of 235 62 FIR No. 63/06 PS - Kanjhawala Registration No. 4111. The said entry was made on the direction of SDM, Punjabi Bagh vide order No. 2001/97, dated 19/12/2001. As per the entry, the date of birth of prosecutrix (name withheld) is 11/03/1991. He has brought the original register, photocopy of relevant record is Ex. PW11/A. There is nothing in the cross­examination of PW11 - Sh. Raman Kumar so as to impeach his creditworthiness.

Despite grant of opportunity, PW11 - Sh. Raman Kumar was not cross­examined on behalf of accused persons.

In the circumstances, it stands established on the record that the date of birth of the prosecutrix is 11/03/1991.

As the date of alleged incident is 21/05/2006 and the date of birth of prosecutrix is 11/03/1991, on simple arithmetical calculation, the age of prosecutrix comes to 15 years, 02 months and 10 days as on the date of incident on 21/05/2006.

In view of above and in the circumstances, it stands 62 of 235 63 FIR No. 63/06 PS - Kanjhawala established on record that PW4 ­ prosecutrix was aged 15 years, 02 months and 10 days as on the date of alleged incident on 21/05/2006.

15. Learned Counsel for accused Deepak Malik submitted that the age of the prosecutrix has not been properly established to show as to base upon which documents/proofs her date of birth was registered with MCD.

Learned Counsel for accused Manjeet Singh submitted that the complainant herself has declared her age as 16 years in FIR which is exhibited as Ex. PW3/B, the certificate of MCD and educational institution has been exhibited but have not been proved by prosecution witnesses nor the author of the School Certificate has been examined. The Sub­Registrar Birth and Death MCD in his statement as PW11 has proved the document as Ex. PW11/A, however no prudent and cogent evidence has been placed on record of birth such as of a Hospital or otherwise other means of birth has not been disclosed.

I have carefully perused and analysed the evidence on record.

63 of 235 64 FIR No. 63/06 PS - Kanjhawala The evidence with regard to the age of the prosecutrix has been reproduced, discussed and analysed here­in­above under the heading "Age of the prosecutrix" and at the cost of repetition, it stands established on the record that PW4 - prosecutrix was aged 15 years, 02 months and 10 days as on the date of alleged incident on 21/05/2006.

So far as the plea raised by the Learned Counsel for the accused Deepak Malik that, "the age of the prosecutrix has not been properly established to show as to base upon which documents/proofs her date of birth was registered with MCD", is concerned, it is evidence from the record that during cross­examination of PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.

At the cost of repetition, PW11 - Sh. Raman Kumar, Sub 64 of 235 65 FIR No. 63/06 PS - Kanjhawala Registrar, Birth & Death, MCD Office, Najafgarh, Delhi in his examination­in­chief has deposed that he is posted as Sub­Registrar in the above said Office. He has brought the birth registration pertaining to the year, 2001. the registration of one female girl namely prosecutrix (name withheld) daughter of Kamal Kumar Manna and Smt. Jharna Manna was made in the said Register on 29/12/2001 vide Registration No. 4111. The said entry was made on the direction of SDM, Punjabi Bagh vide order No. 2001/97, dated 19/12/2001. As per the entry, the date of birth of prosecutrix (name withheld) is 11/03/1991. He has brought the original register, photocopy of relevant record is Ex. PW11/A. Despite grant of opportunity, PW11 - Sh. Raman Kumar was not cross­examined on behalf of accused Sandeep Yadav and Manjeet Singh.

During his cross­examination on behalf of accused Deepak Malik, PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi has specifically deposed which is reproduced and reads as under :­ 65 of 235 66 FIR No. 63/06 PS - Kanjhawala "It is correct that registration Number in the birth certificate issue (issued) by our office is 4141. It is correct that date of birth of prosecutrix (name withheld) according to out record is 11/03/1991. It is correct that date of birth of prosecutrix (name withheld) was registered in our office on 29/12/2001. The date of birth of prosecutrix (name withheld) was registered on the basis of order of SDM. We make entries of registration on the directions of SDM in case where there is a lapse of one year in registration from the date of birth. It is incorrect to suggest that I have brought the wrong record."

There is nothing in the cross­examination of PW11 - Sh. Raman Kumar so as to impeach his creditworthiness. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused Deepak Malik as well as on behalf of accused Sandeep Yadav and Manjeet Singh.

At the cost of repetition, PW4 - prosecutrix in her examination­in­chief recorded on 13/02/2008 has specifically deposed that :­ "My date of birth is 11/03/1991. Witness had identified her CBSE Admit Card of class ninth bearing her photograph to be her and the said admit card is Ex. PX1."

66 of 235 67 FIR No. 63/06 PS - Kanjhawala On careful perusal and analysis of the testimony of PW4 - prosecutrix, it is found that said part of testimony of PW4 - prosecutrix has not been challenged during her incisive and lengthy cross­ examination on behalf of accused Deepak Malik.

As discussed here­in­before, it stands established on the record that the date of birth of the prosecutrix is 11/03/1991. It is also notices that the date of birth of PW4 - prosecutrix as reflected in her CBSE Admit Card of IXth Class Ex. PX1 is in consonance with her date of birth 11/03/1991 registered with the Office of Sub­ Registrar, MCD vide Ex. PW11/A as proved by PW11 - Sh. Raman Kumar, Sub Registrar, Birth & Death, MCD Office, Najafgarh, Delhi.

In the instant case, since the date of birth certificate Ex. PX1 from the School (other than a play School), first attended by PW4 - prosecutrix, as provided under Rule 12 (3)(a)(ii) is available, therefore, the same is adopted as the highest rated first available 67 of 235 68 FIR No. 63/06 PS - Kanjhawala basis in terms of the scheme of options under clause (a) of Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Rules, 2007.

It is pertinent to reproduce para 20 of Jarnail Singh's case (Supra) of the Hon'ble Supreme Court which reads as under :­ "On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (here­in­after referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Rules, 2000. Rule 12 referred to here­in­above reads as under :­ "12. Procedure to be followed in determination of Age.? (1) In every conflict with law, the Court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining ­ 68 of 235 69 FIR No. 63/06 PS - Kanjhawala

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board,which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub­rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules a copy of the order shall be given to such juvenile or the person concerned.

69 of 235 70 FIR No. 63/06 PS - Kanjhawala (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub­rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in out considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW­PW6. The manner of determining age conclusively, has been expressed in sub­rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), 70 of 235 71 FIR No. 63/06 PS - Kanjhawala matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused. MEDICAL EVIDENCE OF THE PROSECUTRIX

16. PW1 - Dr. P. C. Prabhakar, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that on 22/05/2006, at about 1:50 a.m. prosecutrix (name withheld) D/o Kamal Manna, aged about 16 years was brought to Hospital by SI Sudesh for medical examination with 71 of 235 72 FIR No. 63/06 PS - Kanjhawala the alleged history of sexual assault as told by the patient herself as well as Kamal Manna. He examined the patient and found no external injury on exposed parts and he referred the patient to Gynaecologist, on duty, for further examination and opinion. His MLC in this regard is Ex. PW1/A which bears his signatures at point 'B'.

Despite grant of opportunity PW1 - Dr. P. C. Prabhakar was not cross­examined on behalf of the accused.

PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that she has seen MLC No. 7193 of patient/prosecutrix (name withheld) which bears medical examination notes in the hand of Dr. Monica as marked in Red. Dr. Monica has since left the services of Sanjay Gandhi Hospital and her present whereabouts are not known. She is however well acquainted with her (Dr. Monica) handwriting and signatures having worked along side her. The medical examination notes in the hand of Dr. Monica are Ex. PW2/B and bears her signatures at point 'A'.

During her cross­examination PW2 - Dr. Manisha, Gynae, 72 of 235 73 FIR No. 63/06 PS - Kanjhawala SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that :­ "I have no personal knowledge about the present record and this MLC was not prepared in my presence."

There is nothing in the cross­examination of PW2 - Dr. Manisha so as to impeach her creditworthiness.

In view of above and in the circumstances, the medical examination vide MLC Ex. PW1/A and the gynaecological examination vide notes marked in red Ex. PW2/B on the MLC Ex. PW1/A of PW4 ­ prosecutrix stands proved on the record. VIRILITY OF THE ACCUSED MANJEET, DEEPAK MALIK AND SANDEEP YADAV

17. PW12 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Delhi has deposed that on 22/05/2006, he was posted as Medical Officer in the Mortuary of Sanjay Gandhi Memorial Hospital. On that day, he medically examined one Manjeet, Deepak Malik and Sandeep Yadav 73 of 235 74 FIR No. 63/06 PS - Kanjhawala brought by the Police for examination of sexual potency. The detailed medical examination report of Manjeet is Ex. PW12/A bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Deepak Malik is Ex. PW12/B bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Sandeep Yadav is Ex. PW12/C bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act.

During his cross­examination on behalf of accused Deepak Malik, PW12 - Dr. V. K. Jha has deposed that :­ "I did not observed (observe) any scratch marks over the body of accused Deepak Malik. It is wrong to suggest that I am deposing falsely at the instance of IO"

There is nothing in the cross­examination of PW12 - Dr. V. K. Jha so as to impeach his creditworthiness.

74 of 235 75 FIR No. 63/06 PS - Kanjhawala Despite grant of opportunity, PW12 - Dr. V. K. Jha was not cross­examined on behalf of accused Sandeep and Manjeet.

In the circumstances, it stands established on the record that accused Manjeet, Deepak Malik and Sandeep were capable of performing sexual act.

BIOLOGICAL AND SEROLOGICAL EVIDENCE

18. PW23 - Inspector Sanjita tendered the biological and serological reports (Colly.) Ex. PX (running into three pages) in the evidence.

As per biological report Ex. PX description of the articles contained in parcels reads as under :­ DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '1'.

75 of 235 76 FIR No. 63/06 PS - Kanjhawala Exhibit '1' : One jeans pant having dark brown stains. Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '2a' & '2b'. Exhibit '2a' : Cotton wool swab on a stick described as 'Vaginal swab kept in a test tube'.

Exhibit '2b' : Cotton wool swab on a stick described as 'Vaginal swab kept in a test tube'.

Parcel '3' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '3'.

Exhibit '3'    :      One underwear.

Parcel '4'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 

"SGMH GOVT. OF NCT DELHI" containing exhibit '4'. Exhibit '4' : Dark brown foul smelling liquid described as 'Blood sample, kept in a injection vial'.

Parcel '5' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '5'. Exhibit '5' : A few strands of hair described as 'Pubic hair'. Parcel '6' : One sealed cloth parcel sealed with the seal of 76 of 235 77 FIR No. 63/06 PS - Kanjhawala "SGMH GOVT. OF NCT DELHI" containing exhibit '6'.

Exhibit '6'          :      One underwear.

Parcel '7'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 

"SGMH GOVT. OF NCT DELHI" containing exhibit '7'. Exhibit '7' : Dark brown foul smelling liquid described as 'Blood sample, kept in an injection vial'.

Parcel '8' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '8'. Exhibit '8' : A bunch of hair described as 'Pubic hair'. Parcel '9' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '9'.

Exhibit '9'          :      One underwear.

Parcel '10'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 

"SGMH GOVT. OF NCT DELHI" containing exhibit '10'. Exhibit '10' : Dark brown foul smelling liquid described as 'Blood sample, kept in an injection vial'.

Parcel '11' : One sealed cloth parcel sealed with the seal of "SGMH GOVT. OF NCT DELHI" containing exhibit '11'.

77 of 235 78 FIR No. 63/06 PS - Kanjhawala Exhibit '11' : A few strands of hair described as 'Pubic Hair'. Parcel '12' : One sealed cloth parcel sealed with the seal of "SD" containing exhibit '12'.

Exhibit '12'         :      Two seat covers.

Parcel '13'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 
"SD" containing exhibit '13'.

Exhibit '13'         :      One damp handkerchief, kept in a polythene.



Parcel '14'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 
"SD" containing exhibit '14'.

Exhibit '14'         :      One underwear.

Parcel '15'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 
"SD" containing exhibit '15'.

Exhibit '15'         :      One condom, kept in a polythene.

Parcel '16'   :  One   sealed   cloth   parcel   sealed   with   the   seal    of 
"SD" containing exhibit '16'.

Exhibit '16'         :      A pair of shoes make TRENDZ.




                                                                                      78 of  235
                                       79
                                                                                           FIR No. 63/06
                                                                                      PS - Kanjhawala



     RESULT OF ANALYSIS

1. Blood was detected on exhibits '4', '7' & '10'.

2. Human semen was detected on exhibits '1', '2b', '3', '6', '9' & '15'.

3. Semen could not be detected on exhibits '2a', '5', '8', '11', '12', '13', '14' & '16'.

4. Report of serological analysis in original is attached herewith. NOTE : Remnants of the exhibits have been sealed with the seal of 'NK FSL DELHI'.

The serological report Ex. PX (Colly.) reads as under:­ Exhibits Species of origin ABO Grouping/Remarks Blood Stains:­ '4' Blood sample Sample was putrefied hence no opinion '7' Blood sample Sample was putrefied hence no opinion '10' Blood sample Sample was putrefied hence no opinion Semen Stains:­ '1' Jeans pant Area I ­­­­ 'O' Group Area II ­­­­ 'O' Group Area III ­­­­ Inconclusive Result '2b' Cotton wool swab ­­­­ No Reaction '3' Underwear ­­­­ No Reaction '6' Underwear ­­­­ No Reaction '9' Underwear ­­­­ No Reaction 79 of 235 80 FIR No. 63/06 PS - Kanjhawala '15' Condom ­­­­ No Reaction As per the biological report Ex. PX with regard to the description of the articles contained in the parcels, it is noticed that, parcel nos. 1 and 2 belong to PW4 - prosecutrix which were seized vide seizure memo Ex. PW19/B dated 22/05/2006, parcel nos. 3 to 5 belong to accused Sandeep Yadav which were seized vide seizure memo Ex. PW9/A dated 22/05/2006, parcel nos. 6 to 8 belong to accused Deepak Malik which were seized vide seizure memo Ex. PW8/A dated 22/05/2006, parcel nos. 9 to 11 belong to accused Manjit Singh which were seized vide seizure memo Ex. PW20/A dated 22/05/2006, parcel no. 12 containing two seat covers which were seized vide seizure memo Ex. PW4/C dated 22/05/2006 and parcel no. 13 to 16 were seized vide seizure memo Ex. PW4/B dated 22/05/2006.

On careful perusal and analysis of the biological evidence on record, it clearly shows that blood was detected on exhibit '4' (Blood 80 of 235 81 FIR No. 63/06 PS - Kanjhawala sample of accused Sandeep), exhibit '7' (Blood sample of accused Deepak Malik) and exhibit '10' (Blood sample of accused Manjit Singh); Human semen was detected on exhibit '1' (One jeans pant of the prosecutrix), exhibit '2b' (Vaginal swab of the prosecutrix), exhibit '3' (underwear of accused Sandeep), exhibit '6' (underwear of accused Deepak Malik), exhibit '9' (underwear of accused Manjit Singh) and exhibit '15' (condom).

On a conjoint reading of the medical examination vide MLC Ex. PW1/A, the gynaecological examination vide notes marked in red Ex. PW2/B on MLC Ex. PW1/A of the prosecutrix together with the MLCs of accused Manjit Singh, Deepak Malik and Sandeep Ex. PW12/A, Ex. PW12/B, Ex. PW12/C respectively in the light of the biological and serological evidence detailed here­in­above, it clearly indicates the taking place of recent sexual intercourse activity.

In the circumstances, it stands clearly established on the record that recent sexual intercourse activity has taken place in the instant case.

81 of 235 82 FIR No. 63/06 PS - Kanjhawala As per the biological report Ex. PX, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' One jeans pant (of the prosecutrix seized vide seizure memo Ex. PW19/A), exhibit '2b' Vaginal swab (of the prosecutrix seized vide seizure memo Ex. PW19/A), exhibit '3' underwear (of accused Sandeep seized vide seizure memo Ex. PW9/A), exhibit '6' underwear (of accused Deepak Malik seized vide seizure memo Ex. PW8/A), exhibit '9' underwear (of accused Manjit Singh seized vide seizure memo Ex. PW20/A) and exhibit '15' (condom seized vide seizure memo Ex. PW4/B). Accused Deepak Malik, Sandeep and Manjeet Singh were under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1', '2b', '3', '6', '9' and '15' as detailed here­in­above. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.

82 of 235 83 FIR No. 63/06 PS - Kanjhawala INFORMATION REGARDING APPREHENSION OF ACCUSED SANDEEP AND DEEPAK MALIK

19. PW7 - ASI Suresh Chand is the Incharge PCR who deposed that on 21/05/2006, he was posted as In­charge PCR Cdr. 69 and was on duty from 8:00 a.m. to 8:00 p.m. At about 7:00 p.m. We received a call that one Maruti car 800CC of white colour had ran towards Kanjhawala after taking a girl. Number of the car is DL­6CD­6807. Thereafter, he chased the car and the car ran towards village Karala and they stopped the car near School in village Karala. The two boys were apprehended from the car. The name of the boys came to know after inquiry as Sandeep and Deepak. The driver of the car ran away from the spot after leaving the car. They informed to the local Police and Addl. SHO, PS - Kanjhawala reached at the spot. After some time, SI Sudesh Dahiya also reached at the spot. They handed over the accused to them. From the search of the car one toy pistol was recovered. He handed over the toy pistol to the Police. IO seized the same and recorded his statement and proved the case property, toy pistol Ex. P3, photographs Ex. PW6/A1 to Ex. PW6/A10.

There is nothing in the cross­examination of PW7 - ASI 83 of 235 84 FIR No. 63/06 PS - Kanjhawala Suresh Chand as was conducted on behalf of accused Deepak Malik and Sandeep so as to impeach his creditworthiness.

Despite grant of opportunity, PW7 - ASI Suresh Chand was not cross­examined on behalf of the accused Manjeet Singh. CRIME TEAM EVIDENCE

20. PW17 - Inspector Ravi Singh, is the Incharge Crime Team, North West Distt. Delhi, who deposed that on 22/05/2006, he was posted as In­charge, Crime Team, N/W District, Delhi. On that day, at about 2:00 a.m., he was directed by the Control Room to reach at PS - Kanjhawala. Accordingly, he alongwith his team including Constable Suresh, Finger Print Proficient and Constable Dalbir, Photographer reached PS ­ Kanjhawala. The team was briefed by the IO W/SI Sudesh about the crime of rape committed in the moving car. Accordingly, he alongwith his team illuminated the tower light and search light and firstly, photographed the car bearing registration no. DL 6CD 6807 white Maruti Car in the premises of PS. During the inspection of the car, no chance prints could be detected. However, inside the car, one cherry color underwear, one rose colored condom and one pubis hair and six 84 of 235 85 FIR No. 63/06 PS - Kanjhawala long hair were found alongwith other articles as mentioned in his report column No. 12. He handed over the same to the IO with the instructions to be followed by the IO for investigating the case. He prepared his report and handed over the same to IO. His report is Ex. PW17/A bearing his signatures at points 'A'.

PW6 - Constable Dalbir Singh is the Photographer, who deposed that on 21­22/05/2006, he was posted as Constable in Mobile Crime Team, North­West District as Photographer. On that day, he alongwith Mobile Crime Team In­charge reached at PS - Kanjhawala at about 3:00 a.m., where one Maruti 800 of white colour bearing registration No. DL­6CD­6807 was parked in the Police Station. There, he, at the instance of IO W/SI Sudesh, he took 10 photographs of the car. The photographs are Ex. PW6/A1 to Ex. PW6/A10 and the negatives of the same are Ex. PW6/B1 to Ex. PW6/B10. IO recorded his statement.

There is nothing in the cross­examination of PW17 - Inspector Ravi Singh so as to impeach his creditworthiness.

Despite grant of opportunity, PW6 - Constable Dalbir Singh 85 of 235 86 FIR No. 63/06 PS - Kanjhawala was not cross­examined on behalf of the accused.

In view of above, the crime team report Ex. PW17/A and the photographs Ex. PW6/A1 to Ex. PW6/A10 and negatives Ex. PW6/B1 to Ex. PW6/B10 stands proved on the record. MOBILE PHONES AND CALL DETAIL RECORD (CDR) EVIDENCE

21. PW21 - Israr Babu, Alternate Nodal Officer, Vodafone Essar Mobile Service Ltd., C­45, Okhla Phase - II, New Delhi who deposed that he has brought the summoned record. AS per their record, mobile no. 9899305610 is in the name of Surender Yadav R/o Village Khera, Delhi. The certified copy of ownership record is Ex. PW21/A. The call details of the said number from 19/05/2006 to 23/05/2006 is Ex. PW21/B and the certificate u/s 65(B) of the Evidence Act is Ex. PW21/C bearing his signature at point 'A'.

There is nothing in the cross­examination of PW21 - Israr Babu so as to impeach his creditworthiness.

86 of 235 87 FIR No. 63/06 PS - Kanjhawala In view of above, certified copy of ownership record of mobile No. 9899305610 Ex. PW21/A and the call details of the said mobile number from 19/05/2006 to 23/05/2006 Ex. PW21/B and certificate u/s 65(B) of the Evidence Act Ex. PW21/C stands proved on record.

22. Now let the testimony of PW4 - prosecutrix be perused and analysed.

PW4 ­ Prosecutrix (name withheld) D/o Kamal Manna, R/o 522/7, Ashok Mohalla, Bhooto Wali Gali, Nangloi, Delhi, in her examination­in­chief recorded on 13/02/2008 has deposed which is reproduced and reads as under :­ I am residing at the aforesaid house alongwith my parents, an elder brother and an elder sister. My date of birth is 11/03/1991. Witness has identified her CBSE Admit Card of class ninth bearing her photograph to be her and the said admit card is Ex. PX1.

I am at present studying in class 12. In the year 2006, I used to learn 'Judo' at Bal Bhawan, New Delhi. One boy, Bobby (PW16 - Prashant Sharma) also used to undergo training of Judo over there and he was thus known to me. I had a close friendship with Bobby. However, Sandeep who was a friend of Bobby took my mobile phone number from the phone of Bobby and on his own he started ringing me up. He used to 87 of 235 88 FIR No. 63/06 PS - Kanjhawala ask me to talk to him but when I refused then he stated that atleast I can talk to him treating him as my brother. During all this Sandeep talked to me for about 2/3 occasions on telephone.

Thereafter, on 21/05/2006 at around 4:00/4:15 p.m. accused Sandeep rang me up and told me that Bobby is calling me at Nangloi Bus Stand as he was standing alongwith him over there itself. At that time I was present in my house. I however, told Sandeep that if Bobby has any work with me then he can on his own ring me up and that I will not go otherwise. However, Sandeep stated that Bobby has misplaced his mobile phone and thus unable to contact me on phone. Upon this I went to Nangloi bus stand. However, as I had not met Sandeep ever before, so he had told me the colour of his clothes so that I may be able to identify him. At Nangloi bus stand Sandeep Yadav was wearing sky blue shirt and a jeans. He had only told me the colour of his shirt and his own complexion to be that of slightly dark complexion and he had stated that he will be standing towards the side of Aggarwal Sweets. At Nangloi bus stand I identified Sandeep on the basis of aforesaid description as told to him (be read 'him' as 'me') by him. He told me that Bobby will meet us at Peera Garhi Chowk as he had got a bit late and he further told me to sit in a maruti 800 car of white colour whose registration number I do not remember now which was parked nearby. However, I saw two other persons sitting already in the said car and whose names I later on came to know that Manjeet and Deepak. Upon seeing them sitting in the car I told Sandeep that I will not sit in the car as two other boys are already sitting over there. Sandeep however, stated that the said two boys will get down on the way to Peera Garhi so, I need not to worry and I can sit in the car. I accordingly sat in the car on the rear seat and Sandeep sat alongwith me. Car was being driven by Manjeet and Deepak was sitting on the seat adjacent to it.

88 of 235 89 FIR No. 63/06 PS - Kanjhawala Upon reaching Peera Garhi Chowk I told Sandeep that as Bobby is not present there and that I should be now brought back to my house and upon which Sandeep stated that they will drop me at my house via the way going through Rani Khera. I however, insisted that I instead be dropped over there itself and that I will go to my house on my own. However, the said three boys did not allow me to get down and even locked the doors of the car from inside. Sandeep thereafter again assured me that nothing will happen and that he will certainly drop me at my house. However, the said three boys directly took me to a Farm House at Rani Khera which belonged to one cousin of Manjeet. They took me to a room over there. However, prior to it when I was not getting down from the car as I was resisting and opposing the said three boys as to why I was brought over there then Deepak showed me a pistol and thereby forcibly took me to the room inside after lifting me in his lap. Deepak after taking me inside the room locked it from inside and at that time Sandeep and Manjeet were sitting inside (be read in place of 'inside' as 'outside' in view of Court observation dated 31/01/2009). Deepak tried to molest me as he asked me to take off my clothes and during all this I started raising hue and cry shouting loudly then upon this the cousin brother of Manjeet who was already present over there came and asked Deepak to take me away as I was raising a lot of hue and cry and he stated that if his father will come then he will give beating to him. Upon this when Deepak opened the door then I tried to run out then Manjeet caught hold me and made me to again sit inside the car. This time now Deepak sat alongwith me on the rear seat and Manjeet started driving the car while Sandeep was sitting on the seat adjacent to the driver. Deepak pressed my mouth as I was raising a lot of hue and cry.

On that day, I was wearing jeans and a top. On the way 89 of 235 90 FIR No. 63/06 PS - Kanjhawala back from the Farm House Deepak started molesting me but as I was trying to resist his attempts and was trying to hit Deepak and Deepak asked Sandeep to catch hold of my hands and thereafter Deepak took off my jeans and Deepak also took off his jeans and he had sexual intercourse with me against my wishes and consent. This all incident was taking place on the rear seat of the Maruti car and during all this time the car kept moving as was being driven by Manjeet. Deepak also took off my underwear. During all this Deepak also gave beating to me. After doing all this wrong act with me Deepak sat on one side of the seat and when I tried to pull down the window pane then also he gave beating to me and even pressed my neck. At that time the car was still moving in the area of Rani Khera itself however, as I was crying and raising a lot of hue and cry then one old aged person saw me and heard me and he along with a number of other ladies who were also standing nearby asked some boys who were present there with their motorcycles to save me. However, the said boys did not stop the car and upon which some motorcyclists went ahead and made the car to stop after they parked their motorcycle on the way of the car. After great persuasion only and that too when the ladies threw stones on the car that the doors of the car were opened and I as a result fell down on the road. However, Deepak and Sandeep were caught hold off by the persons present over there but Manjeet fled away from the spot after leaving the car over there. I was taken to the house of the said old aged person by the villagers and after some time Police came over there.

She further proved her statement Ex. PW4/A signed by her at point 'A' and attested by her sister Munmun at point 'B'. She also 90 of 235 91 FIR No. 63/06 PS - Kanjhawala proved her MLC Ex. PW1/A and seizure memo of her sports shoes and a condom Ex. PW4/B bearing her signatures at point 'A', seizure memo of seat cover of the said car Ex. PW4/C bearing her signatures at point 'A', seizure memo of toy pistol Ex. PW4/D bearing her signatures at point 'A', seizure memo of maruti car Ex. PW4/E bearing her signatures at point 'A' and seizure memo of two mobile phones viz. One of Nokia and other of Reliance LG Ex. PW4/F bearing her signatures at point 'A'. She also proved the personal search memo of accused Sandeep and Deepak Malik Ex. PW4/G and Ex. PW4/H respectively and personal search memo of accused Manjeet Ex. PW4/J all bearing her signatures at point 'A'.

From the aforesaid narration of PW4 - prosecutrix, it is clear that she is residing at the house at 522/7, Ashok Mohalla Bhooto Wali Gali, Nangloi, Delhi, alongwith her parents, an elder brother and an th elder sister. Her date of birth is 11/03/1991. She is studying in class 12 . In the year 2006, she used to learn 'Judo' at Bal Bhawan, New Delhi. One boy, Bobby (PW16 - Prashant Sharma) also used to undergo training of Judo over there and he was thus known to her. She had a 91 of 235 92 FIR No. 63/06 PS - Kanjhawala close friendship with Bobby. However, Sandeep who was a friend of Bobby took her mobile phone number from the phone of Bobby and on his own he started ringing her up. He used to ask her to talk to him but when she refused then he stated that atleast she can talk to him treating him as her brother. During all this Sandeep talked to her for about 2/3 occasions on telephone. Thereafter, on 21/05/2006 at around 4:00/4:15 p.m. accused Sandeep rang her up and told her that Bobby is calling her at Nangloi Bus Stand as he was standing alongwith him over there itself. At that time she was present in her house. She however, told Sandeep that if Bobby has any work with her then he can on his own ring her up and that she will not go otherwise. However, Sandeep stated that Bobby has misplaced his mobile phone and thus unable to contact her on phone. Upon this she went to Nangloi bus stand. However, as she had not met Sandeep ever before, so he had told her the colour of his clothes so that she may be able to identify him. At Nangloi bus stand Sandeep Yadav was wearing sky blue shirt and a jeans. He had only told her the colour of his shirt and his own complexion to be that of slightly dark complexion and he had stated that he will be standing towards the side of Aggarwal Sweets. At Nangloi bus stand she identified Sandeep on the 92 of 235 93 FIR No. 63/06 PS - Kanjhawala basis of aforesaid description as told to her by him. He told her that Bobby will meet them at Peera Garhi Chowk as he had got a bit late and he further told her to sit in a maruti 800 car of white colour whose registration number she does not remember now which was parked nearby. However, she saw two other persons sitting already in the said car and whose names she later on came to know that (as) Manjeet and Deepak. Upon seeing them sitting in the car she told Sandeep that she will not sit in the car as two other boys are already sitting over there. Sandeep however, stated that the said two boys will get down on the way to Peera Garhi so, she need not to worry and she can sit in the car. She accordingly sat in the car on the rear seat and Sandeep sat alongwith her. Car was being driven by Manjeet and Deepak was sitting on the seat adjacent to it. Upon reaching Peera Garhi Chowk she told Sandeep that as Bobby is not present there and that she should be now brought back to her house and upon which Sandeep stated that they will drop her at her house via the way going through Rani Khera. She however, insisted that she instead be dropped over there itself and that she will go to her house on her own. However, the said three boys did not allow her to get down and even locked the doors of the car from inside. Sandeep thereafter 93 of 235 94 FIR No. 63/06 PS - Kanjhawala again assured her that nothing will happen and that he will certainly drop her at her house. However, the said three boys directly took her to a Farm House at Rani Khera which belonged to one cousin of Manjeet. They took her to a room over there. However, prior to it when she was not getting down from the car as she was resisting and opposing the said three boys as to why she was brought over there then Deepak showed her a pistol and thereby forcibly took her to the room inside after lifting her in his lap. Deepak after taking her inside the room locked it from inside and at that time Sandeep and Manjeet were sitting inside (be read in place of 'inside' as 'outside' in view of Court observation dated 31/01/2009). Deepak tried to molest her as he asked her to take off her clothes and during all this she started raising hue and cry shouting loudly then upon this the cousin brother of Manjeet who was already present over there came and asked Deepak to take her away as she was raising a lot of hue and cry and he stated that if his father will come then he will give beating to him. Upon this when Deepak opened the door then she tried to run out then Manjeet caught hold her and made her to again sit inside the car. This time now Deepak sat alongwith her on the rear seat and Manjeet started driving the car while Sandeep was sitting on the seat 94 of 235 95 FIR No. 63/06 PS - Kanjhawala adjacent to the driver. Deepak pressed her mouth as she was raising a lot of hue and cry. On that day, she was wearing jeans and a top. On the way back from the Farm House Deepak started molesting her but as she was trying to resist his attempts and was trying to hit Deepak and Deepak asked Sandeep to catch hold of her hands and thereafter Deepak took off her jeans and Deepak also took off his jeans and he had sexual intercourse with her against her wishes and consent. This all incident was taking place on the rear seat of the Maruti car and during all this time the car kept moving as was being driven by Manjeet. Deepak also took off her underwear. During all this Deepak also gave beating to her. After doing all this wrong act with her Deepak sat on one side of the seat and when she tried to pull down the window pane then also he gave beating to her and even pressed her neck. At that time the car was still moving in the area of Rani Khera itself however, as she was crying and raising a lot of hue and cry then one old aged person saw her and heard her and he along with a number of other ladies who were also standing nearby asked some boys who were present there with their motorcycles to save her. However, the said boys did not stop the car and upon which some motorcyclists went ahead and made the car to stop after they 95 of 235 96 FIR No. 63/06 PS - Kanjhawala parked their motorcycle on the way of the car. After great persuasion only and that too when the ladies threw stones on the car that the doors of the car were opened and she as a result fell down on the road. However, Deepak and Sandeep were caught hold off by the persons present over there but Manjeet fled away from the spot after leaving the car over there. She was taken to the house of the said old aged person by the villagers and after some time Police came over there.

PW4 - Prosecutrix during her cross­examination on behalf of accused Deepak Malik negated the suggestions that accused Deepak Malik never went alongwith her as stated by her or that he never committed rape with her or that she has falsely implicated accused Deepak Malik in the present case at the instance of Police or that no rape was committed with her by Deepak Malik on 21/05/2006 or that she is deposing falsely.

PW4 - Prosecutrix during her cross­examination on behalf of accused Sandeep negated the suggestions that accused Sandeep never rang her up as he did not know her or that accused Sandeep did not meet 96 of 235 97 FIR No. 63/06 PS - Kanjhawala her on 21/05/2006 either at 4:00 p.m. at the time of her first visit or subsequently at 4:30 p.m. at the time of her second visit or that on 21/05/2006, Sandeep did not meet her at all or that he did accompany her in any car or that he never caught hold of her hands or that she is deposing falsely.

PW4 - Prosecutrix during her cross­examination on behalf of accused Manjeet negated the suggestions that she signed the documents at the instance of IO without going through them and nothing was recovered in her presence or that accused Manjeet was not present on that day or that he was not in any manner involved in the incident as stated by her or that she is deposing falsely or that she had not identified accused Manjeet in the PS on the next day.

Inspite of incisive cross­examination of PW4 ­ prosecutrix nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross­ examination and her testimony is consistent throughout. Her testimony on careful perusal and analysis is found to be clear, natural, cogent, 97 of 235 98 FIR No. 63/06 PS - Kanjhawala convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

The testimony of PW4 - prosecutrix is also found to be corroborated by her medical/gynaecological evidence as well as the biological and serological evidence as discussed here­in­before.

The testimony of PW4 - prosecutrix is also found to be corroborated by her statement made to Police Ex. PW4/A bearing her signature at point 'A'.

The testimony of PW4 - prosecutrix is also found to be corroborated by the testimony of PW13 - Munmun her elder sister as well as by PW14 - Kamal Manna, her father to whom she disclosed the facts relating to the crime soon after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

98 of 235 99 FIR No. 63/06 PS - Kanjhawala Now let the testimonies of PW13 - Munmun, elder sister of prosecutrix and PW14 - Kamal Manna, father of the prosecutrix be perused and analysed.

PW13 - Munmun is the elder sister of the prosecutrix who in her examination­in­chief has deposed which is reproduced and reads as under :­ "On 21/05/2006, I was present at my house. One telephone call was received at my residence from Rani Khera to the effect that prosecutrix (name withheld), who is my sister, had undergone some mishappening and she was present at their house. I do not know the name of the person who gave the telephonic call on 21/05/2006. On receipt of the said call, I alongwith my father Sh. Kamal Manna had reached at informed place at Rani Khera Village where prosecutrix (name withheld) was found present. Two Police officials were also present there. Inspector Sudesh was also present there. We came to know that my sister/prosecutrix (name withheld) was raped. Prosecutrix (name withheld) narrated me the entire incident. Prosecutrix (name withheld) had told me that the main culprit is Deepak who had raped her and two other boys helped Deepak in the commission of offence. Thereafter, we accompanied Inspector Sudesh and other Police officials to PS - Kanjhawala where Police had already apprehended two culprits. In the evening, I and my father had accompanied Inspector Sudesh and 99 of 235 100 FIR No. 63/06 PS - Kanjhawala other Police officials in search of third culprit and Manjeet was apprehended by the Police from a village situated at Bawana side. Thereafter, we came back to the Police Station. Prosecutrix (name withheld) was taken for medical examination at Sanjay Gandhi Memorial Hospital. Police had seized one panty of prosecutrix (name withheld), one condom from the car in which the incident took place. The registration number of car was DL­6CD­6807 and it was Maruti 800. the exhibits were kept in a pullinda and some stamp was fixed on it but I do not know where they were sent. I can identify all the three accused as I have seen two accused in the Police custody and third accused was arrested in my presence."

During the leading questions put by the Learned Addl. PP for the State, PW13 - Munmun has deposed that :­ "Q. Is it correct that the two boys and the car used by them was apprehended by the PCR near the School of Karala Village? A. I do not know as the two boys and car used by them were not apprehended in my presence. Confronted with portion 'A' to 'A' of statement Mark PW13/1 wherein it is so recorded. Q. Is it correct that one pistol was also recovered from the said Maruti car and after preparing the sketch of said pistol, it was kept in pullinda and sealed with the seal of SD?

A. It is correct.

Q. Is it correct that the said Maruti car was also inspected by crime team?

A. I do not know. Confronted with portion 'B' to 'B' of statement Mark 100 of 235 101 FIR No. 63/06 PS - Kanjhawala PW13/1 wherein it is so recorded.

Q. Is it correct that two mobile phones were also recovered from the said car?

A. It is correct.

Q. Is it correct that the condom which was recovered from the car was used?

A. I do not know. Confronted with portion 'C' to 'C' of statement Mark PW13/1 wherein it is so recorded.

Q. Is it correct that you reached to Village Rani Khera on receipt of information by Police.

A. It is correct. Voltd. We were informed by the person who were (was) resident of Rani Khera.

All accused are present in the Court today, correctly identified by the witness.

I can identify the case property if shown to me. At this stage MHC(M) has produced a sealed parcel sealed with the seal of VP (Court seal), same is opened and out of which one pistol is taken out and shown to witness who correctly identifies the same which was recovered by Police from Maruti Car No. DL­6CD­6807. Pistol is Ex. P3.

At this stage, MHC(M) has produced a gunny bag, out of which a polythene is taken out, same is opened and out of which two mobile phones make LG and Nokia are taken out and shown to witness who correctly identifies the same which were recovered by Police from Maruti Car No. DL­6CD­6807. The two mobile phones are already Ex. P4 and Ex. P5.

At this stage MHC(M) has produced a sealed parcel sealed with the seal of FSL, Delhi, same is opened and out of which one condom is taken out and shown to witness who states that she had not 101 of 235 102 FIR No. 63/06 PS - Kanjhawala seen the same when it was recovered.

I can identify the panty of Kumkum which was seized during the investigation."

From the aforesaid narration of PW13 - Munmun, it is clear that on 21/05/2006, she was present at her house. One telephone call was received at her residence from Rani Khera to the effect that prosecutrix (name withheld), who is her sister, had undergone some mishappening and she (prosecutrix) was present at their house. She (PW13) does not know the name of the person who gave the telephonic call on 21/05/2006. On receipt of the said call, she (PW13) alongwith her father Sh. Kamal Manna had reached at informed place at Rani Khera Village where prosecutrix (name withheld) was found present. Two Police officials were also present there. Inspector Sudesh was also present there. They came to know that her sister/prosecutrix was raped. Prosecutrix narrated her the entire incident. Prosecutrix had told her that the main culprit is Deepak who had raped her (prosecutrix) and two other boys helped Deepak in the commission of offence. Thereafter, they accompanied Inspector Sudesh and other Police officials to PS - Kanjhawala where Police had already apprehended two culprits. In the 102 of 235 103 FIR No. 63/06 PS - Kanjhawala evening, she and her father had accompanied Inspector Sudesh and other Police officials in search of third culprit and Manjeet was apprehended by the Police from a village situated at Bawana side. Thereafter, they came back to the Police Station. Prosecutrix was taken for medical examination at Sanjay Gandhi Memorial Hospital. Police had seized one panty of prosecutrix, one condom from the car in which the incident took place. The registration number of car was DL­6CD­6807 and it was Maruti 800. The exhibits were kept in a pullinda and some stamp was fixed on it but she (PW13) does not know where they were sent. She can identify all the three accused as she had seen two accused in the Police custody and third accused was arrested in her presence. She correctly identified all the accused present in the Court and also identified and proved the case property; Pistol Ex. P3 and two mobile phones Ex. P4 and Ex. P5.

PW13 - Munmun, elder sister of the prosecutrix during her cross­examination on behalf of accused Deepak Malik negated the suggestions that she did not visit Police Station on 21/05/2006 or that no proceedings were conducted by the Police in her presence or that nothing 103 of 235 104 FIR No. 63/06 PS - Kanjhawala was recovered in her presence or that she has deposed falsely.

Despite grant of opportunity, PW13 - Munmun was not cross­examined on behalf of accused Sandeep and Manjeet.

PW14 - Kamal Manna is the father of the prosecutrix who in his examination­in­chief has deposed which is reproduced and reads as under :­ "On 21/05/2006, at about 4:30 p.m., I received a phone call from a resident of Rani Khera that my daughter/prosecutrix (name withheld) has been raped in a vehicle. On receipt of phone call, I alongwith my elder daughter Munmun went to Rani Khera. We saw that Police persons were gathered at Rani Khera in front of a house. Police was present there and had apprehended accused Sandeep and Deepak Malik both present in Court today, correctly identified by the witness. Thereafter, we came at Kanjhawala Police Station. After some time, ACP also reached at PS - Kanjhawala. Thereafter, I accompanied ACP and other Police officials in search of third accused at Bawana. The Police parked the vehicle outside the gali and apprehended accused Manjeet present in Court today from his house in Bawana. Thereafter, we all came back to PS - Kanjhawala alongwith accused Manjeet. Thereafter, Police took my daughter/prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital. I remained in the Hospital during night as my daughter/prosecutrix was admitted there till next morning. Thereafter, ACP took me and my daughter/prosecutrix (name withheld) to DCP N/W Shri Sagarpreet Hooda. Police had prepared some 104 of 235 105 FIR No. 63/06 PS - Kanjhawala documents. Thereafter, we went to PS - Kanjhawala and we remained there for two hours and thereafter we left. I have nothing else to say."

During the leading questions put by the Learned Addl. PP for the State, PW14 - Kamal Manna has deposed that :­ "Q. Is it correct that Police had recovered one Maruti Car No. DL­6CD­6807 and one pistol?

A. It is correct.

Q. Is it correct that Police had recorded the statement of your daughter/prosecutrix (name withheld)?

A. I cannot say as I was sitting outside the room. Q. Is it correct that from the Maruti Car No. DL­6CD­6807, two mobile phones, one panty of your daughter/prosecutrix (name withheld) and one condom were recovered by the Police.

A. It is correct.

Q. Is it correct that crime team was called and inspected the Maruti Car? A. I do not know as I was disturbed at that time."

From the aforesaid narration of PW14 - Kamal Manna, it is clear that on 21/05/2006, at about 4:30 p.m., he received a phone call from a resident of Rani Khera that his daughter/prosecutrix (name withheld) has been raped in a vehicle. On receipt of phone call, he alongwith his elder daughter Munmun went to Rani Khera. They saw that Police persons were gathered at Rani Khera in front of a house.

105 of 235 106 FIR No. 63/06 PS - Kanjhawala Police was present there and had apprehended accused Sandeep and Deepak Malik both present in Court (whom he correctly identified). Thereafter, they came at Kanjhawala Police Station. After some time, ACP also reached at PS - Kanjhawala. Thereafter, he accompanied ACP and other Police officials in search of third accused at Bawana. The Police parked the vehicle outside the gali and apprehended accused Manjeet present in Court from his house in Bawana. Thereafter, they all came back to PS - Kanjhawala alongwith accused Manjeet. Thereafter, Police took his daughter/prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital. He remained in the Hospital during night as his daughter/prosecutrix was admitted there till next morning. Thereafter, ACP took him and his daughter/prosecutrix (name withheld) to DCP N/W Shri Sagarpreet Hooda. Police had prepared some documents. Thereafter, they went to PS - Kanjhawala and they remained there for two hours and thereafter they left. He has nothing else to say.

PW14 - Kamal Manna, father of the prosecutrix during his cross­examination on behalf of accused Sandeep Yadav negated the suggestions that when he reached at Rani Khera alongwith his daughter 106 of 235 107 FIR No. 63/06 PS - Kanjhawala Munmun, they did not find accused persons or the car present there or that he has deposed falsely in his examination­in­chief.

PW14 - Kamal Manna, during his cross­examination on behalf of accused Deepak Malik negated the suggestions that on 21/05/2006, he alongwith his daughter/prosecutrix (name withheld) did not visit Rani Khera or neither accused Sandeep of Deepak Malik were arrested in their presence or that they reached to PS - Kanjhawala directly from their house at night time and his daughter/prosecutrix (name withheld) was shown the accused persons who were kept behind lockup in unmuffled faces or that all the proceedings were conducted while sitting in the PS or that no recovery was effected in his presence or that he had deposed falsely.

Despite grant of opportunity, PW14 - Kamal Manna was not cross­examined on behalf of the accused Manjeet.

There is nothing in the cross­examination of PW13 - Munmun, elder sister of the prosecutrix and PW14 - Kamal Manna, father of the prosecutrix so as to impeach their creditworthiness. They 107 of 235 108 FIR No. 63/06 PS - Kanjhawala have withstood the rigors of cross­examination without being shaken. On careful perusal and analysis and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII (S.C.)1] their testimonies are found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case. They have deposed regarding the facts as to what they perceived, observed and experienced.

23. While analysing the testimonies of PW4 ­ Prosecutrix, PW13 - Munmun, her elder sister and PW14 - Kamal Manna, her father as discussed here­in­above inspite of incisive cross­examination of PW4 ­ Prosecutrix, PW13 - Munmun and PW14 - Kamal Manna nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestion by the defence to PW4 ­ Prosecutrix that accused Deepak Malik never went alongwith her as stated by her or that he never committed rape with her or that she has falsely implicated accused Deepak Malik in the present case at the instance of Police or that no rape was committed with her by 108 of 235 109 FIR No. 63/06 PS - Kanjhawala Deepak Malik on 21/05/2006 or that she is deposing falsely or that accused Sandeep never rang her up as he did not know her or that accused Sandeep did not meet her on 21/05/2006 either at 4:00 p.m. at the time of her first visit or subsequently at 4:30 p.m. at the time of her second visit or that on 21/05/2006, Sandeep did not meet her at all or that he did accompany her in any car or that he never caught hold of her hands or that she is deposing falsely or that she signed the documents at the instance of IO without going through them and nothing was recovered in her presence or that accused Manjeet was not present on that day or that he was not in any manner involved in the incident as stated by her or that she is deposing falsely or that she had not identified accused Manjeet in the PS on the next day, the suggestions to PW13 - Munmun that she did not visit Police Station on 21/05/2006 or that no proceedings were conducted by the Police in her presence or that nothing was recovered in her presence or that she has deposed falsely and the suggestions to PW14 - Kamal Manna that when he reached at Rani Khera alongwith his daughter Munmun, they did not find accused persons or the car present there or that he has deposed falsely in his examination­in­chief or that on 21/05/2006, he alongwith his 109 of 235 110 FIR No. 63/06 PS - Kanjhawala daughter/prosecutrix (name withheld) did not visit Rani Khera or neither accused Sandeep of Deepak Malik were arrested in their presence or that they reached to PS - Kanjhawala directly from their house at night time and his daughter/prosecutrix (name withheld) was shown the accused persons who were kept behind lockup in unmuffled faces or that all the proceedings were conducted while sitting in the PS or that no recovery was effected in his presence or that he had deposed falsely, were put, which were negated by the said PWs but the same have not at all being made probable much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.

24. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.

It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as :­ 110 of 235 111 FIR No. 63/06 PS - Kanjhawala "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found :­ "Sexual intercourse: In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated :­ 111 of 235 112 FIR No. 63/06 PS - Kanjhawala ".....even slight penetration is sufficient and emission is unnecessary."

On analysing the testimony of PW4 - Prosecutrix in the light of medical examination vide MLC Ex. PW1/A, gynaecological examination vide notes marked in red Ex. PW2/B on the MLC Ex. PW1/A of the prosecutrix, biological and serological evidence Ex. PX (Colly.), together with the MLCs of accused Manjeet, Deepak Malik and Sandeep Yadav, Ex. PW12/A, Ex. PW12/B and Ex. PW12/C respectively, as discussed here­in­before, the act of sexual intercourse activity by complete penetration of penis with emission of semen or by partial penetration of the penis with emission, within labia majora or the vulva or pudenda stands proved.

In the circumstances, it stands clearly established on the record of the performance of the act of sexual intercourse by accused Deepak Malik with PW4 - prosecutrix without her consent acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet Singh.

25. Learned Counsel for accused Deepak Malik submitted that 112 of 235 113 FIR No. 63/06 PS - Kanjhawala accused Deepak Malik was not arrested in the presence of prosecutrix and he was shown to her in the PS on next day. Learned Counsel further submitted that the IO did not take any precaution to keep him in muffled face and no TIP was got conducted.

Learned Counsel for accused Manjeet submitted that the statement of PW4 prosecutrix is full of contradictions inconsistencies, irregularities, additions, subtractions and her statement is devoid of even a grain of truth, genuinity and cogency. In her cross­examination she states that "I had come to the PS when Manjeet was shown to me at around 10:00 a.m. on the next day of the incident". Whereas according to arrest memo, the accused Manjeet was arrested from his house at 11:30 a.m. on the next day of the incident. Learned Counsel submitted that there is a distance of about 15­17 kms. from the house of the accused to the PS and the area is highly congested and it probably takes normally 45­55 minutes of travel to reach the PS - Kanjhawala from the house of the accused, which is in consistence and contradicted and not inspiring confidence when compared to her statement as mentioned above. Learned Counsel further submitted that according to charge­sheet, the accused Manjeet was arrested at the instance of the prosecutrix. It is also 113 of 235 114 FIR No. 63/06 PS - Kanjhawala stated in charge­sheet that the accused Manjeet was apprehended from his house and at that time the IO (was) accompanying with the prosecutrix and some Police officials, whereas in the cross­examination of PW4, she stated that "after the medical examination, I was taken to the PS directly where accused Manjeet was shown to me. At that time accused Manjeet was sitting in one room of the PS alongwith some Police officials. I have not given the physical description of accused Manjeet in my statement to the Police." It is further stated by the prosecutrix in the cross­examination that "I and my parents were called to the PS on the next day at around 11:00 a.m. or so by the SHO. At that time only accused Manjeet was present in the PS." Learned Counsel submitted that PW13 - sister of the prosecutrix stated on SA that "I and my father had accompanied Inspector Sudesh and other Police officials in search of third culprit and Manjeet was apprehended by the Police from Bawana side." Learned Counsel submitted that neither sister and father of the prosecutrix nor the IO or other Police officials had any description of the accused Manjeet as stated by the prosecutrix in her statement that she had not given any physical description of accused Manjeet in her statement to the Police. Learned Counsel for accused 114 of 235 115 FIR No. 63/06 PS - Kanjhawala further submitted that PW14, father of the prosecutrix stated on SA that "I accompanied ACP and other Police officials in search of the third accused at Bawana. The Police parked the vehicle outside the gali and apprehended accused Manjeet present in the Court today from his house in Bawana. Thereafter, we all came back to PS - Kanjhawala alongwith accused Manjeet. Thereafter, Police took my daughter/prosecutrix (name withheld) to Sanjay Gandhi Memorial Hospital." Learned Counsel submitted that it is crystal clear that the accused Manjeet was arrested prior to the medical examination of the prosecutrix.

Learned Counsel for accused Sandeep Yadav submitted that the identity of accused Sandeep Yadav has never been established.

I have carefully perused and analysed the evidence on record.

It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

The testimony of PW4 ­ Prosecutrix has been reproduced, 115 of 235 116 FIR No. 63/06 PS - Kanjhawala discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

It is pertinent to reproduce the relevant part of examination­in­chief of PW4 ­ Prosecutrix recorded on 13/02/2008 which reads as under :­ "(Court Observation: At this stage, all the three accused persons have been called inside the court room from Ahlmad room and witness has been correctly identified all the accused persons even by their names).

The personal search memo of accused Sandeep and Deepak Malik respectively Ex. PW4/G and H also bear my signatures at pt. A each. Witness further states that accused Manjeet was apprehended by the police on next day and after he was apprehended then I had identified him before the police to be Manjeet. The personal search memo of accused Manjeet Ex. PW4/J also bears my signatures at pt. A."

116 of 235 117 FIR No. 63/06 PS - Kanjhawala During her cross­examination recorded on 31.01.2009 conducted on behalf of accused Deepak Malik PW­4 Prosecutrix has deposed that :­ "After the incident, I have seen accused Deepak for the first time in the Court only during the course of present trial."

It is also to be noted that on 31.01.2009 after the conclusion of the cross­examination on behalf of all the accused, the Learned Addl. PP had sought court permission to re­examine the witness so as to put a leading question qua the identification of accused Deepak and Sandeep by the witness in the PS, also during the course of investigation which was allowed and thereafter, Court had also put court question to the witness.

The relevant part with regard to the re­examination as conducted by the Learned Addl. PP and the Court question by the Court is reproduced and reads as under :­ "At this stage, Learned APP seeks permission to reexamine the witness so as to put a leading question qua the identification of accused Deepak and Sandeep by the witness in the PS also during the 117 of 235 118 FIR No. 63/06 PS - Kanjhawala course of investigation.

Heard. Perused. Allowed.

It is correct that after the incident I had identified accused Deepak and Sandeep in the PS. XXXX by Sh. R.N. Sharma, Learned Counsel for accused Deepak Malik.

I had not seen accused Deepak and Sandeep in the PS after the incident. Vol. I had only seen accused Manjeet.

Court Question Earlier at the time of examination by Learned APP you stated that you had identified accused Deepak and Sandeep in the PS after the incident but now you are denying it. Why?

Ans. ­I had only seen accused Manjeet and not Deepak and Sandeep in the PS. Witness has kept mum as to why she earlier answered in affirmative to the question of Learned APP."

From the aforesaid narration of PW­4 Prosecutrix she appeared to have oscillated as to which accused she had seen and identified in the PS after the incident but the sight cannot be lost of the fact of the rigours which she had undergone and that she has correctly identified all the accused persons even by their names and also proved the personal search memos of accused Sandeep, Deepak Malik and 118 of 235 119 FIR No. 63/06 PS - Kanjhawala Manjeet Ex. PW4/G, Ex. PW4/H and Ex. PW4/J respectively, all memos bearing her signature at Point 'A'.

The perusal of the personal search memos of accused Sandeep, Deepak Malik and Manjeet Ex. PW4/G, Ex. PW4/H and Ex. PW4/J respectively shows that all are dated 22/05/2006 and bearing the signature of PW4 ­ Prosecutrix at Point 'A'.

Moreover, the oscillation made by PW4 ­ prosecutrix as to which accused she had seen and identified in the PS after the incident does not reflect upon the substantive evidence and the probative value of the statement made by PW4 - prosecutrix on material and relevant aspects. Nor does it dislodge the substratum of the prosecution case and despite its existence the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution. Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, 119 of 235 120 FIR No. 63/06 PS - Kanjhawala retention and reproduction differs with individuals.

During her cross­examination on behalf of accused Manjeet PW4 ­ Prosecutrix has specifically deposed that :­ "I had come to the PS when Manjeet was shown to me at around10:00 a.m. on the next day".

So far as the plea raised by the Learned Counsel for accused Manjeet that there is a discrepancy of time and place in the testimony of PW4 ­ Prosecutrix with regard to the identification of accused Manjeet vis­a­vis the arrest of accused Manjeet vide arrest memo Ex. PW22/C, without PW4 ­ Prosecutrix having given any description of accused Manjeet in her statement made to the police, is concerned, it is evident from the record that the said accused Manjeet did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised, during the course examination of PW24 ­ Inspector Sudesh Dahiya, IO. In fact no cross­examination of PW24 ­ Inspector Sudesh Dahiya, IO was conducted on behalf of accused Manjeet despite grant of opportunity rather accused Manjeet had opted to adopt the cross­ examination conducted on behalf of accused Deepak Malik and Sandeep. PW24 ­ Inspector Sudesh Dahiya, IO was the only competent witness, 120 of 235 121 FIR No. 63/06 PS - Kanjhawala who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).

In case 'State Vs. Wasson Singh' AIR 1981 SC 697, the Hon'ble Supreme Court has observed that :­ "Where the witnesses are examined at the trial, 17 months 121 of 235 122 FIR No. 63/06 PS - Kanjhawala after the incident, such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witness when there is general agreement and consistency in regard to the substratum of the prosecution case."

The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.

The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :

1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video

122 of 235 123 FIR No. 63/06 PS - Kanjhawala tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).

The Hon'ble Supreme Court in Para 21 of the case titled Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that :­ "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of 123 of 235 124 FIR No. 63/06 PS - Kanjhawala doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].

The testimony of PW24 ­ Inspector Sudesh Dahiya, IO has been detailed and discussed here­in­before.

PW24 ­ Inspector Sudesh Dahiya, IO, during her examination­in­chief has specifically deposed which is reproduced 124 of 235 125 FIR No. 63/06 PS - Kanjhawala and reads as under :­ "..........I came to know that accused ran away towards Karala area. Meanwhile SHO, PS ­ Kanjhawala received message on his wireless set that two accused have been apprehended by the PCR near Karala school with Maruti ­ 800 car. Thereafter we all reached there, where PCR incharge HC Suresh produced one Maruti car bearing car DL­6CD­6807 of white colour and two accused persons namely Deepak Malik and Sandeep. Prosecutrix identified these two persons by their names....."

"....... Accused Deepak Malik and Sandeep thoroughly interrogated and thereafter both of them arrested vide Ex.PW22/A and 22/B respectively which bears my signature at point B and their personal search were conducted vide memos ExPW4/H and 4/G respectively which bears my signature at point C........"

During her cross­examination on behalf of accused Deepak Malik PW24 ­ Inspector Sudesh Dahiya, IO has categorically deposed which is reproduced and reads as under :­ ".......It is further wrong to suggest that I had shown the accused persons to the prosecutrix and her family members and tutored them to name accused Deepak Malik......"

".......I had requested the independent public persons to witness the abovesaid seizure memos, but they declined to do so.

125 of 235 126 FIR No. 63/06 PS - Kanjhawala However, I had not mentioned this fact in my case diary. It is wrong to suggest that the signatures of accused Deepak Malik were obtained on blank papers which were later on conveniently converted into the alleged disclosure statement and the accused had never made any such statement....."

".......It is incorrect to suggest that I did not carry out a fair and impartial investigation or that accused Deepak Malik was falsely implicated by me before that he was not arrested from village Karala School or that the entire proceedings were manipulated by me while sitting in the PS......"

On careful perusal and analysis of the PW24 ­ Inspector Sudesh Dahiya, IO, the same is found to be clear, cogent and a graphic description of the steps taken by her during the course of investigation. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

So far as the plea raised by the Learned Counsel for accused Deepak Malik that accused Deepak Malik was not arrested in the presence of prosecutrix and he was shown to her in the PS on the next day and that IO did not take any precaution to keep him in muffled face and no TIP was got conducted, is concerned, it is evident from the record 126 of 235 127 FIR No. 63/06 PS - Kanjhawala that during the cross­examination of PW24 ­ Inspector Sudesh Dahiya, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness, who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

It is settled law that if there is no cross­examination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

127 of 235 128 FIR No. 63/06 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

26. Learned Counsel for accused Deepak Malik submitted that the Mobile Phone allegedly recovered from Maruti Car is not connected to him. There is no other scientific/expert evidence which may go to connect the said accused with the alleged offences. The owner of the Maruti Car was never produced in the witness box to establish as to who was in possession of aforesaid Car at the time of alleged incident.

Learned Counsel for accused Sandeep Yadav submitted that in the report furnished by Forensic Science Laboratory nothing adverse has been found which can constitute the offence of rape on accused Sandeep Yadav. He further submitted that the contents of Ex. PW21/B reveals that from the mobile of accused Sandeep Yadav, 19 times calls were made on the victim mobile, it is to be mentioned that the mobile recovered from accused Deepak Malik bearing No. 9350513714 which was having conference facility through which the accused Deepak Malik and Sandeep Yadav and the victim used to talk frequently and 128 of 235 129 FIR No. 63/06 PS - Kanjhawala approximately have talked more than 100 times during 18/05/2006 to 21/05/2006, the mobiles of both the accused were seized at the time of actual arrest which was at about 5:30 p.m. on 21/05/2006 but the records of mobile shows that the said mobile continued till 07 hours 32 minutes 24 seconds of 22/05/2006.

I have carefully perused and analysed the evidence on record.

PW21 - Israr Babu, Alternate Nodal Officer, Vodafone Essar Mobile Service Ltd., C­45, Okhla Phase - II, New Delhi has deposed that he has brought the summoned record. As per their record, mobile no. 9899305610 is in the name of Surender Yadav R/o Village Khera, Delhi. The certified copy of ownership record is Ex. PW21/A. The call details of the said number from 19/05/2006 to 23/05/2006 is Ex. PW21/B and the certificate u/s 65(B) of the Evidence Act is Ex. PW21/C bearing his signature at point 'A'.

There is nothing in the cross­examination of PW­21 Israr Babu so as to impeach his creditworthiness.

129 of 235 130 FIR No. 63/06 PS - Kanjhawala PW23 ­ Inspector Sanjita, the subsequent IO, during the course of her re­examination recorded on 07/04/2012 has deposed that :­ "On 16/08/2006 I came to know that phone number 9350513714 is in the name of Surender Kumar resident of RZF­768/4B, Gali No.8, Raj Nagar­II, Palam Colony, New Delhi and phone number 9899305610 is in the name of Surender Yadav resident of Village Khera, New Delhi. I visited at the above address to verify and I came to know that one S. B.Singh son of Davinder Singh was residing at the address of Raj Nagar­II, Palam Colony, New Delhi and the address of Surender Yadav was not found traceable.

I collected the FSL result. The same is collectively Ex. PX (runs into three pages)."

PW4 ­ Prosecutrix during her examination­in­chief recorded on13/02/2008 has deposed that :­ "Two mobile phones viz. One of Nokia and other of Reliance LG were also taken into possession from inside the said car as they belonged to the said boys. The seizure memo of the same is Ex. PW4/F and it bears my signature at point 'A'."

"At this stage, two mobile phones in a polythene bag in an unsealed condition as brought by MHC(M), PS ­ Kanzhawla

130 of 235 131 FIR No. 63/06 PS - Kanjhawala (Kanjhawala) has been shown to the witness and witness identifies the LG Phone of Silver colour to be that of accused Deepak and the other phone Make Nokia to be probably that of accused Manjit. The LG phone is Ex.P4 and the Nokia phone is Ex. P5."

PW24 ­ Inspector Sudesh Dahiya, IO, in her examination­in­chief has specifically deposed that :­ "I also inspected the Maruti car and found two mobile phone one was of Nokia make and another was of Reliance LG. I seized the same vide seizure memo Ex.PW4/F, bearing my signature at Point C."

"MHC(M) also produced one mobile phone make RELIANCE LG in unsealed condition. Same is shown to the witness who correctly identified the same as Ex. P4.

MHC(M) also produced one mobile phone make NOKIA in unsealed condition. Same is shown to the witness who correctly identified the same as Ex. P5."

During her cross­examination conducted on behalf of accused Deepak Malik recorded on 31/01/2009 PW4 ­ Prosecutrix has specifically deposed that :­ 131 of 235 132 FIR No. 63/06 PS - Kanjhawala "Prior to 21/05/2006, I had talked to Sandeep for the past about 1/1½ week only. It is wrong to suggest that I and Sandeep used to talk with each other about 10 times a day. I do not remember the mobile number which I used to carry at that time, but it was of Reliance. It is correct that my mobile number was 9313685650. I was having only one mobile.

I do not remember as to whether the mobile number of accused Sandeep was 9899305610 or not."

From the aforesaid narration of PW4 ­ Prosecutrix it is clearly indicated that she was having one mobile of Reliance, having number 9313685650 and prior to 21/05/2006 she has talked to Sandeep for the past about 1/1½ week only and she does not remember as to whether the mobile number of accused Sandeep was 9899305610 or not and negated the suggestion that she and Sandeep used to talk with each other about ten times a day.

It is not made clear by the Learned Counsel for accused Deepak Malik as to what he intends to convey and as to what benefit he intends to reap from the aforesaid part of the testimony of PW4 ­ Prosecutrix.

It is evident from the record that during the entire incisive and lengthy cross­examination of PW4 ­ Prosecutrix it was 132 of 235 133 FIR No. 63/06 PS - Kanjhawala no where being specifically suggested to her, the mobile phone numbers used by accused Deepak Malik, Manjeet and Sandeep Yadav. What was the hesitation for the same? The reasons for the same must be known to the Learned Counsel for the accused.

Moreover, during their statements recorded U/s 313 Cr.P.C all the accused have expressed their ignorance with regard to mobile numbers 9350513714 and 9899305610 and have not uttered a single word regarding the said mobile numbers.

The relevant part of the statement u/s 313 Cr.P.C. of accused Deepak Malik is reproduced and reads as under :­ "Q53. It is in evidence against you that on 16/08/2006, PW23 ­ Inspector Sanjita came to know that phone number 9350513714 is in the name of Surender Kumar R/o RZF­768/4B, Gali No. 8, Raj Nagar­II, Palam Colony and Phone No. 9899305610 is in the name of Surender Yadav, R/o Village Khera and she came to know that one S.B. Singh S/o Devender Singh was residing at the address of Raj Nagar­II, Palam and address of Surender Yadav was not found Traceable. What you have to say?

              Ans.     I do not know."




                                                                                     133 of  235
                                        134
                                                                                               FIR No. 63/06
                                                                                          PS - Kanjhawala

The relevant part of the statement u/s 313 Cr.P.C. of accused Manjeet is reproduced and reads as under :­ "Q53. It is in evidence against you that on 16/08/2006, PW23 ­ Inspector Sanjita came to know that phone number 9350513714 is in the name of Surender Kumar R/o RZF­768/4B, Gali No. 8, Raj Nagar­II, Palam Colony and Phone No. 9899305610 is in the name of Surender Yadav, R/o Village Khera and she came to know that one S.B. Singh S/o Devender Singh was residing at the address of Raj Nagar­II, Palam and address of Surender Yadav was not found Traceable. What you have to say?

Ans. I do not know."

The relevant part of the statement u/s 313 Cr.P.C. of accused Sandeep Yadav is reproduced and reads as under :­ "Q53. It is in evidence against you that on 16/08/2006, PW23 ­ Inspector Sanjita came to know that phone number 9350513714 is in the name of Surender Kumar R/o RZF­768/4B, Gali No. 8, Raj Nagar ­ II, Palam Colony and Phone No. 9899305610 is in the name of Surender Yadav, R/o Village Khera and she came to know that one S. B. Singh S/o Devender Singh was residing at the address of Raj Nagar ­ II, Palam and address of Surender Yadav was not found Traceable. What you have to say?

Ans. I do not know."

So far as the plea raised by the Learned Counsel for the 134 of 235 135 FIR No. 63/06 PS - Kanjhawala accused Deepak Malik that there is no other scientific/expert evidence which may go to connect the said accused with the alleged offences and the plea raised by the Learned Counsel for accused Sandeep Yadav that, "in the report furnished by Forensic Science Laboratory nothing adverse has been found which can constitute the offence of rape on accused Sandeep Yadav", are concerned, the biological and serological evidence Ex. PX (Colly.) has been reproduced, discussed and analysed here­in­ before.

At the cost of repetition, as per the biological report Ex. PX, prosecution has discharged its initial burden of proving the presence of Human semen on exhibit '1' One jeans pant (of the prosecutrix seized vide seizure memo Ex. PW19/A), exhibit '2b' Vaginal swab (of the prosecutrix seized vide seizure memo Ex. PW19/A), exhibit '3' underwear (of accused Sandeep seized vide seizure memo Ex. PW9/A), exhibit '6' underwear (of accused Deepak Malik seized vide seizure memo Ex. PW8/A), exhibit '9' underwear (of accused Manjit Singh seized vide seizure memo Ex. PW20/A) and exhibit '15' (condom seized vide seizure memo Ex. PW4/B). Accused 135 of 235 136 FIR No. 63/06 PS - Kanjhawala Deepak Malik, Sandeep and Manjeet Singh were under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '1', '2b', '3', '6', '9' and '15' as detailed here­in­above. The absence of such an explanation both in the section 313 Cr.P.C. statements of the accused and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.

So far as the plea raised by the Learned Counsel for accused Deepak Malik that the owner of the Maruti Car was never produced in the witness box to establish as to who was in possession of aforesaid Car at the time of alleged incident, is concerned, it is evident from the record that during the cross­examination of PW­24 Inspector Sudesh Dahiya, IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have fully capable of explaining correctly the factual situation. In such a situation the accused cannot be heard saying that since the most material witness was withheld by the prosecution, therefore, adverse inference should be drawn against the 136 of 235 137 FIR No. 63/06 PS - Kanjhawala prosecution.

It is to be noticed that PW24 ­ Inspector Sudesh Dahiya, IO, during her examination­in­chief has specifically deposed that :­ "..........I came to know that accused ran away towards Karala area. Meanwhile SHO, PS ­ Kanjhawala received message on his wireless set that two accused have been apprehended by the PCR near Karala school with Maruti ­800 car. Thereafter we all reached there, where PCR incharge HC Suresh produced one Maruti car bearing car DL­6CD­6807 of white colour and two accused persons namely Deepak Malik and Sandeep. Prosecutrix identified these two persons by their names....."

"..........Crime team photographer took photographs of the maruti car....."

"......I can also identify the Maruti Car bearing no. DL6CD­6807 if shown to me. The car is on superdari to the father of accused Deepak Malik. Identity of the car is not disputed by the Learned Defence counsel for the accused. The ten photographs of the car are already on record. Witness submits that the said photographs are of the (car) taken by the photographer of the crime team which are already Ex.PW6/A1 to A10 collectively. The car is ExPW24/5."

(Underlined by me) 137 of 235 138 FIR No. 63/06 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

27. Learned Counsel for accused Deepak Malik submitted that based upon bald assertion of the prosecutrix that she was raped by accused Deepak Malik cannot be said to be established. No injuries were found either on the body of prosecutrix nor on the body of accused Deepak Malik.

Learned Counsel for accused Manjeet submitted that there is no incriminating allegation or evidence which has been put on the record either in the statement of the prosecutrix or in her statement Ex. PW­4/A against accused Manjeet and that there are no allegation of rape against accused Manjeet.

Learned Counsel for accused Sandeep Yadav submitted that in the present case the complainant is a free lancer and was a judo student, the complainant is a call­girl, free lancer, play girl, has (as) depicted in the statement by PW4 also complainant has admitted that the complainant was (in) a close friendship of Mr. Bobby who has been 138 of 235 139 FIR No. 63/06 PS - Kanjhawala witnessed by the prosecution as PW16, in a lust to have more friendship to enjoy the life and earn money the complainant requested Bobby to arrange meeting with his other friends as the girl was free lancer managed to have mobile numbers of accused Sandeep Yadav as admitted in her own statement used to talk with accused Sandeep Yadav for more than 10­15 times in a day, prior to the alleged day of incident 15­20 days before the complainant talked on phone and not only talked on phone but met him and the both the complainant and accused Sandeep Yadav spent some time together. It is the concocted story of prosecution emanating out of afterthought roping the accused for no offence committed by them. With the consent and wishes the complainant went with the accused to pass some time having no intention to commit crime and no force was ever used by accused Sandeep Yadav or any other accused and nothing was done which amounts to abet or attempt to rape has been done. It is the duty of the prosecution / complainant / accused to being all the truth before the Court and not to suppress any vital and important facts which narrates the concoction of the story as the phone calls through PW21/B has been summoned only for 19/05/2006 to 22/05/2006 (be read as 19/05/2006 to 23/05/2006) nor for the last one month period 139 of 235 140 FIR No. 63/06 PS - Kanjhawala since that would have been revealed the truth that in a day the complainant used to have calls more than 20 times a day and complainant several times met with the accused Sandeep Yadav, hence in the present circumstances no force ever has been applied which can be ascertained from the perusal of records/evidence in record, rather it was the complainant who of her own joined the company of the accused and when the PCR had an information of such girl inside the car was following the Car and being afraid of the Police the story has been concocted and the Police also made a best effort to settle the matter among the accused and the complainant and between them but when the things could not went in the way the Police wanted the story in collusion with the complainant was planted. He further submitted that as per the complainant statement the accused Sandeep Yadav called her at about 4:00 p.m. and induced her that Bobby was standing at Nangloi Bus Stand, the complainant never made a call to Bobby being very close friend of Bobby, the resistance to go has been described but immediately the complainant being literate girl, knowing all spheres of life, trusted the accused, again improved by the prosecution, even the Bobby did not meet the complainant at Nangloi Bus Stand she continued in the company of 140 of 235 141 FIR No. 63/06 PS - Kanjhawala accused Sandeep Yadav, if the version would have true the complainant had returned to her home of her own, it is to be mentioned that the Nangloi Bus Stand or the shop of Aggarwal Sweet is having too much of crowd and always nearing 30 to 50 persons are always present there, it is the own version of the complainant that two other persons were sitting in the car despite that complainant boarded the car to go the Peera Garhi, as per the prosecution story the accused Sandeep Yadav told the complainant that the two boys will de­board the vehicle on its way to Peera Garhi, despite not founding Bobby at Peera Garhi the complainant did not went back to her home but continued to sit in the vehicle and have claimed that all the three boys resisted and forced her to sit in the vehicle and locked the Maruti Car, however, there exists no system in Maruti­800 vehicle which can lock the gates and all the four occupants are allowed to open the lock since it is by only one knob, the complainant of her own kept sitting in the vehicle which is owned by the accused Deepak Malik and was having ad­idem with the present person in the vehicle, no use of force is assessable as alleged since two of the boys were sitting on front seat they cannot force or with hold the complainant it was only accused Sandeep Yadav, if the story of the complainant is 141 of 235 142 FIR No. 63/06 PS - Kanjhawala believed that accused Sandeep Yadav was also a stranger how could she believed the accused, both complainant and the accused having independent doors to fled or keep close, the complainant is a judo player and is versed with the judo activities which at least could have provided self defence to the complainant, the said area of Peera Garhi is so crowded during all 24 hours of the day and night that any such incident for force abduction/kidnapping as alleged is not possible, the complainant had ample time to get rid of the accused without any hue and cry. He further submitted that the story concocted by the prosecution has no substance as the complainant asserts that she was taken to a farm house and Deepak started molesting her and on a gun point the clothes were asked to be taken off and in the same condition the complainant was forced or put to enter in the vehicle which is beyond imagination and away from probabilities, a judo player can handle more than four boys, in the present case on the rear seat only one Deepak was sitting, to rope in the Sandeep the complainant has alleged that the accused Sandeep caught her hand while sitting on the front non driving seat which in a vehicle Maruti - 800 is far from possibility and no such holding as alleged is possible since the cabin of the Maruti Car of seat is 142 of 235 143 FIR No. 63/06 PS - Kanjhawala not more than 5 feet and on the rear seat a rim of stepny was also lying, in a cabin of 20'' X 20'' from non driving side to rear of driving side no one can hold or catch or restrain anybody. He further submitted that the condom alleged to be used as seized by PW4/B, nowhere it is described or explained either was packed, when unpacked, when was wear prior to taking off the jeans by the accused was worn or after the putting off the jeans the said was used and how in a Maruti Car can be worn, who bought and brought the condom the complainant herself or the alleged accused is a mystery. He further submitted that even if the prosecution version is upheld the complainant jumped down from the running car no bruise, injury was found and in the statement given u/s 160 (be read as 161 Cr.P.C.) the complainant says that while the vehicle was stopped with the help of villagers the complainant left the vehicle, shoes were lying in the vehicle when the shoes were unfastened, such kind of taking off shoes takes place when consent is with willingness, the incident happens, the complainant kept on meeting with accused Sandeep Yadav is admitted in Ex. PW3/C (be read as Ex. PW4/A). He further submitted that the vehicle seats were having head rests and it is admitted by the PW4 - complainant in Ex. PW3/C (be read as Ex. PW4/A), that 143 of 235 144 FIR No. 63/06 PS - Kanjhawala the accused Sandeep Yadav was sitting on non driving front seat (commonly known as conductor seat) it is alleged that the hands of complainant were caught while sitting on the seat in Maruti 800 vehicle having a box area of 58'' X 30'' cannot hold the hands as alleged. He th further submitted that the 5 wheel called a steepny was lying on the rear seat of the vehicle as shown in Ex. PW6/A1 to A10 leaving no place on the rear seats for an offence as alleged. He further submitted that complainant boarded the alleged vehicle where the rape has been alleged, of her own and no force was addicted in that and it is the version and statement of complainant that the complainant associated the accused at 4:00 p.m. and the vehicle was running the busy and crowded roads of Delhi from Nangloi to Peera Garhi, Peera Garhi to Rani Khera and in the area of Rani Khera itself the vehicle kept on running between 4:00 p.m. to 7:00 p.m. no resistance was ever shown by the complainant during this voyage of 4:00 p.m. to 8:00 p.m., further it is the evidence on record that the vehicle was chased by the Police PCR Van. He further submitted that the present case is of collective friendship outing turned into Gang Rape the age of the complainant was herself informed more than 16 years and the girl in appearance was looking with physique as 18 years or is 144 of 235 145 FIR No. 63/06 PS - Kanjhawala actually of 18 years. He further submitted that MLC conducted on accused Sandeep Yadav does not reveal anything which can prove anything which constitutes the offence of rape, the involvement in the said rape is called gang rape in the statement of prosecutrix it has been alleged that the accused Sandeep Yadav has been bitten by tooth but the MLC of accused Sandeep Yadav exhibited as Ex. PW12/C specially mentions that there are no marks of tooth bite as alleged. He further submitted that the complainant made calls to the accused Sandeep Yadav on 19/05/2006 more than 7 times and reciprocally the accused also dialed to complainant. He further submitted that the prosecutrix has never alleged any offence of rape by the accused Sandeep Yadav, nor the identity of accused Sandeep Yadav has ever been established, none of the act constitutes the offences punishable u/s 363/366/506­II of IPC. He further submitted that the association of accused Sandeep Yadav with accused Deepak Malik is not independent and the complainant and the accused Deepak Malik were friends known to each other, no such act has been committed by the accused Sandeep Yadav which might have facilitated in the offence as alleged on main accused Deepak Malik, no abetment or accomplishment has been proved nor the association of the 145 of 235 146 FIR No. 63/06 PS - Kanjhawala accused Sandeep Yadav has helped to commit the alleged offence hence the same is not covered under the definition of Gang Rape, punishable under Section 376 (2)(g) of Indian Penal Code. He further submitted that the accused Deepak Malik was known to complainant though in past through accused Sandeep Yadav but it was mere a friendship and no meeting of mind or agreement between the other accused ever existed to commit a crime, since the complainant was common friend of accused Deepak Malik and accused Sandeep Yadav and it was only on request of the accused Deepak Malik never having any intention to commit crime just to wander here and there and to pass the time the accused Sandeep Yadav associated with accused Deepak Malik & Manjeet having no common intention to commit a crime and never it was nurtured in common intention and nowhere the complainant has alleged any nurturing act against the accused Sandeep Yadav other than that while sitting on non driver front seat caught hold of her hand which is never possible while sitting on a seat mounted with head rest it is impossible to caught hand to facilitate the putting off the jeans as alleged or to commit any crime, such allegations have no cogent probability and sustainability and the act of the accused Sandeep Yadav does not fall under the ambit 146 of 235 147 FIR No. 63/06 PS - Kanjhawala of Section 376 (2)(g) of IPC or in any other sections under which the accused Sandeep Yadav is charged.

I have carefully perused and analysed the evidence on record.

At the cost of repetition, it is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animous against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

At the cost of repetition, PW4 ­ Prosecutrix in her 147 of 235 148 FIR No. 63/06 PS - Kanjhawala examination­in­chief has specifically deposed which is reproduced and reads as under :­ I am residing at the aforesaid house alongwith my parents, an elder brother and an elder sister. My date of birth is 11/03/1991. Witness has identified her CBSE Admit Card of class ninth bearing her photograph to be her and the said admit card is Ex. PX1.

I am at present studying in class 12. In the year 2006, I used to learn 'Judo' at Bal Bhawan, New Delhi. One boy, Bobby (PW16 - Prashant Sharma) also used to undergo training of Judo over there and he was thus known to me. I had a close friendship with Bobby. However, Sandeep who was a friend of Bobby took my mobile phone number from the phone of Bobby and on his own he started ringing me up. He used to ask me to talk to him but when I refused then he stated that atleast I can talk to him treating him as my brother. During all this Sandeep talked to me for about 2/3 occasions on telephone.

Thereafter, on 21/05/2006 at around 4:00/4:15 p.m. accused Sandeep rang me up and told me that Bobby is calling me at Nangloi Bus Stand as he was standing alongwith him over there itself. At that time I was present in my house. I however, told Sandeep that if Bobby has any work with me then he can on his own ring me up and that I will not go otherwise. However, Sandeep stated that Bobby has misplaced his mobile phone and thus unable to contact me on phone. Upon this I went to Nangloi bus stand. However, as I had not met Sandeep ever before, so he had told me the colour of his clothes so that I may be able to identify him. At Nangloi bus stand Sandeep Yadav was wearing sky blue shirt and a jeans. He had only told me the colour of his shirt and his own complexion to be that of slightly dark complexion and he had stated that he will be standing towards the side of Aggarwal Sweets. At Nangloi bus 148 of 235 149 FIR No. 63/06 PS - Kanjhawala stand I identified Sandeep on the basis of aforesaid description as told to him (be read 'him' as 'me') by him. He told me that Bobby will meet us at Peera Garhi Chowk as he had got a bit late and he further told me to sit in a maruti 800 car of white colour whose registration number I do not remember now which was parked nearby. However, I saw two other persons sitting already in the said car and whose names I later on came to know that Manjeet and Deepak. Upon seeing them sitting in the car I told Sandeep that I will not sit in the car as two other boys are already sitting over there. Sandeep however, stated that the said two boys will get down on the way to Peera Garhi so, I need not to worry and I can sit in the car. I accordingly sat in the car on the rear seat and Sandeep sat alongwith me. Car was being driven by Manjeet and Deepak was sitting on the seat adjacent to it.

Upon reaching Peera Garhi Chowk I told Sandeep that as Bobby is not present there and that I should be now brought back to my house and upon which Sandeep stated that they will drop me at my house via the way going through Rani Khera. I however, insisted that I instead be dropped over there itself and that I will go to my house on my own. However, the said three boys did not allow me to get down and even locked the doors of the car from inside. Sandeep thereafter again assured me that nothing will happen and that he will certainly drop me at my house. However, the said three boys directly took me to a Farm House at Rani Khera which belonged to one cousin of Manjeet. They took me to a room over there. However, prior to it when I was not getting down from the car as I was resisting and opposing the said three boys as to why I was brought over there then Deepak showed me a pistol and thereby forcibly took me to the room inside after lifting me in his lap. Deepak after taking me inside the room locked it from inside and at that time Sandeep and Manjeet were sitting inside (be read in place of 149 of 235 150 FIR No. 63/06 PS - Kanjhawala 'inside' as 'outside' in view of Court observation dated 31/01/2009). Deepak tried to molest me as he asked me to take off my clothes and during all this I started raising hue and cry shouting loudly then upon this the cousin brother of Manjeet who was already present over there came and asked Deepak to take me away as I was raising a lot of hue and cry and he stated that if his father will come then he will give beating to him. Upon this when Deepak opened the door then I tried to run out then Manjeet caught hold me and made me to again sit inside the car. This time now Deepak sat alongwith me on the rear seat and Manjeet started driving the car while Sandeep was sitting on the seat adjacent to the driver. Deepak pressed my mouth as I was raising a lot of hue and cry.

On that day, I was wearing jeans and a top. On the way back from the Farm House Deepak started molesting me but as I was trying to resist his attempts and was trying to hit Deepak and Deepak asked Sandeep to catch hold of my hands and thereafter Deepak took off my jeans and Deepak also took off his jeans and he had sexual intercourse with me against my wishes and consent. This all incident was taking place on the rear seat of the Maruti car and during all this time the car kept moving as was being driven by Manjeet. Deepak also took off my underwear. During all this Deepak also gave beating to me. After doing all this wrong act with me Deepak sat on one side of the seat and when I tried to pull down the window pane then also he gave beating to me and even pressed my neck. At that time the car was still moving in the area of Rani Khera itself however, as I was crying and raising a lot of hue and cry then one old aged person saw me and heard me and he along with a number of other ladies who were also stranding nearby asked some boys who were present there with their motorcycles to save me. However, the said boys did not stop the car and upon which some motorcyclists went 150 of 235 151 FIR No. 63/06 PS - Kanjhawala ahead and made the car to stop after they parked their motorcycle on the way of the car. After great persuasion only and that too when the ladies threw stones on the car that the doors of the car were opened and I as a result fell down on the road. However, Deepak and Sandeep were caught hold off by the persons present over there but Manjeet fled away from the spot after leaving the car over there. I was taken to the house of the said old aged person by the villagers and after some time Police came over there.

On analysing the entire testimony of PW­4 Prosecutrix, it transpires that she has described the scenario implicating accused Deepak Malik, Sandeep Yadav and Manjeet to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Deepak Malik acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet. The accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross­examination. The version of PW­4 Prosecutrix on the core spectrum of the crime has remained intact.

Learned Counsel for accused Sandeep Yadav has propounded a theory that, "With the consent and wishes the complainant went with the accused to pass some time having no 151 of 235 152 FIR No. 63/06 PS - Kanjhawala intention to commit crime and no force was ever used by accused Sandeep Yadav or any other accused and nothing was done which amounts to abet or attempt to rape has been done", is concerned, the said theory so propounded has not at all being made probable much established by any cogent evidence. Nor any suggestion regarding the said theory, so propounded was put to PW­4 Prosecutrix during her incisive and lengthy cross­examination. Nor even a single word regarding the said theory so propounded was uttered by the accused Sandeep Yadav during his statement recorded U/s 313 Cr.P.C. In the circumstances, the said theory so floated is mere an afterthought and falls flat on the ground.

It is also to be noticed that contrary to the aforesaid theory so propounded what has been suggested to PW4 ­ Prosecutrix during her cross­examination which is reproduced and reads as under :­ "It is wrong to suggest that accused Sandeep did not meet me on 21/05/2006 either at 4:00 p.m. at the time of my first visit or subsequently at 4:30 p.m. at the time of my second visit. It is wrong to suggest that on 21/05/2006 Sandeep did not meet me at all or that he did 152 of 235 153 FIR No. 63/06 PS - Kanjhawala accompany me in any car or that he never caught hold of my hands. It is wrong to suggest that I am deposing falsely."

Learned Counsel for accused Sandeep Yadav has raised the plea that, "in the present case the complainant is a free lancer and was a judo student, the complainant is a call­girl, free lancer, play girl, has (as) depicted in the statement by PW4 also complainant has admitted that the complainant was (in) a close friendship of Mr. Bobby who has been witnessed by the prosecution as PW16, in a lust to have more friendship to enjoy the life and earn money the complainant requested Bobby to arrange meeting with his other friends as the girl was free lancer managed to have mobile numbers of accused Sandeep Yadav as admitted in her own statement used to talk with accused Sandeep Yadav for more than 10­15 times in a day, prior to the alleged day of incident 15­20 days before the complainant talked on phone and not only talked on phone but met him and the both the complainant and accused Sandeep Yadav spent some time together. It is the concocted story of prosecution emanating out of afterthought roping the accused for no offence committed by them", is concerned, with due respect, it appears that Learned Counsel for the accused has either misread the evidence or has not read the 153 of 235 154 FIR No. 63/06 PS - Kanjhawala evidence on the record. Without there being an iota of evidence, Learned Counsel for the accused has branded PW4 - prosecutrix as, 'a call girl', 'a play girl' why? There is no basis for the plea raised, ".....in a lust to have more friendship to enjoy the life and earn money the complainant requested Bobby to arrange meeting with his other friends as the girl was free lancer managed to have mobile numbers of accused Sandeep Yadav.....", while the fact is that it was accused Sandeep Yadav who had taken her (PW4 - prosecutrix) mobile number from the mobile instrument of PW16 - Prashant Sharma @ Bobby regarding which PW16

- Prashant Sharma @ Bobby has specifically deposed during his examination­in­chief.

It is pertinent to reproduce the examination­in­chief of PW16 - Prashant Sharma @ Bobby which reads as under :­ "In the year 2006, I was working as Senior Executive in a private company and used to play Judo. Accused Sandeep present in the Court today is my friend and was residing in my locality. Prosecutrix (name withheld) was also my friend. I knew her as she was also sports person and used to play at Bal Bhavan which is a (an) organization near ITO. I had mobile phone number of prosecutrix (name withheld) on which we used to talk. Accused Sandeep had taken her mobile number from my mobile instrument. Accused Sandeep and prosecutrix (name withheld) used to talk with each other but, I cannot say about their talks."

154 of 235 155 FIR No. 63/06 PS - Kanjhawala (Underlined by me) Further PW4 - prosecutrix during her examination­in­ chief has specifically deposed that one Sandeep who was a friend of Bobby (PW16) took her mobile phone number from the phone of Bobby and on his own he started ringing her up. The relevant part of examination­in­chief of PW4 - prosecutrix is reproduced and reads as under :­ "In the year 2006, I used to learn 'Judo' at Bal Bhawan, New Delhi. One boy, Bobby (PW16 - Prashant Sharma) also used to undergo training of Judo over there and he was thus known to me. I had a close friendship with Bobby. However, Sandeep who was a friend of Bobby took my mobile phone number from the phone of Bobby and on his own he started ringing me up. He used to ask me to talk to him but when I refused then he stated that atleast I can talk to him treating him as my brother. During all this Sandeep talked to me for about 2/3 occasions on telephone."

As regards the plea raised by the Learned Counsel for accused Sandeep Yadav that ,"PW4 - prosecutrix admitted in her own statement used to talk with accused Sandeep Yadav for more than 10­15 times in a day, prior to the alleged day of incident 15­20 days before the complainant talked on phone and not only talked on phone but met him 155 of 235 156 FIR No. 63/06 PS - Kanjhawala and the both the complainant and accused Sandeep Yadav spent some time together", is concerned, PW4 - prosecutrix during her cross­ examination on behalf of accused Sandeep Yadav has specifically deposed that prior to 21/05/2006, she had not seen accused Sandeep in person and she had only talked to him on phone. Accused Sandeep only used to ring her up even prior to 21/05/2006. she herself did not use to ring him. It is pertinent to reproduce the relevant part of cross­ examination of PW4 - prosecutrix conducted on behalf of accused Sandeep Yadav, which reads as under :­ "Prior to 21/05/2006, I had not seen accused Sandeep in person. Vol. I had only talked to him on phone. Accused Sandeep only used to ring me up even prior to 21/05/2006. I myself did not use to ring him."

In the circumstances, the theory propounded by Learned Counsel for accused Sandeep Yadav that, "PW4 - prosecutrix admitted in her own statement used to talk with accused Sandeep Yadav for more than 10­15 times in a day, prior to the alleged day of incident 15­20 days before the complainant talked on phone and not only talked on phone but met him and the both the complainant and accused Sandeep Yadav spent some time together", is found to have 156 of 235 157 FIR No. 63/06 PS - Kanjhawala no substance and falls flat on the ground.

So far as the plea raised by the Learned Counsel for accused Sandeep Yadav that the complainant used to have calls more than 20 times a day and she several times met with the accused Sandeep Yadav and the plea that the complainant made calls to the accused Sandeep on 19/05/2006 more than 7 times and reciprocally the accused also dialed the complainant, are concerned, the said pleas have been analysed and dealt with in detail here­in­above. Further, it is also to be noticed that neither in the entire incisive and lengthy cross­examination of PW4 ­ Prosecutrix nor in his statement u/s 313 Cr.P.C accused Sandeep Yadav has disclosed about the mobile phone number used by him, on which he used to receive the calls allegedly made by PW4 ­ Prosecutrix and through which mobile phone number he used to make the calls to PW4 ­ Prosecutrix. In the circumstances, it does not lie in the mouth of accused Sandeep Yadav to utter that prosecution has suppressed the vital and important fact. The factum of mobile number used by accused Sandeep Yadav must be within his especial knowledge, the burden of proving the same was upon him. Section 106 of the Indian 157 of 235 158 FIR No. 63/06 PS - Kanjhawala Evidence Act, 1872 provides for burden of proving fact especially within knowledge.

It reads as under :­ "106. Burden of proving fact especially within knowledge. ­ When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

As far as the plea raised by the Learned Counsel for accused Sandeep Yadav that, "as per the complainant statement the accused Sandeep Yadav called her at about 4:00 p.m. and induced her that Bobby was standing at Nangloi Bus Stand, the complainant never made a call to Bobby being very close friend of Bobby, the resistance to go has been described but immediately the complainant being literate girl, knowing all spheres of life, trusted the accused, again improved by the prosecution, even the Bobby did not meet the complainant at Nangloi Bus Stand she continued in the company of accused Sandeep Yadav, if the version would have true the complainant had returned to her home of her own, it is to be mentioned that the Nangloi Bus Stand or the shop of Aggarwal Sweet is having too much of crowd and always nearing 30 to 50 persons are always present there, it is the own version of the 158 of 235 159 FIR No. 63/06 PS - Kanjhawala complainant that two other persons were sitting in the car despite that complainant boarded the car to go the Peera Garhi, as per the prosecution story the accused Sandeep Yadav told the complainant that the two boys will de­board the vehicle on its way to Peera Garhi, despite not founding Bobby at Peera Garhi the complainant did not went back to her home but continued to sit in the vehicle and have claimed that all the three boys resisted and forced her to sit in the vehicle and locked the Maruti Car" and the plea that, "complainant boarded the alleged vehicle where the rape has been alleged, of her own and no force was addicted in that and it is the version and statement of complainant that the complainant associated the accused at 4:00 p.m. and the vehicle was running the busy and crowded roads of Delhi from Nangloi to Peera Garhi, Peera Garhi to Rani Khera and in the area of Rani Khera itself the vehicle kept on running between 4:00 p.m. to 7:00 p.m. no resistance was ever shown by the complainant during this voyage of 4:00 p.m. To 8:00 p.m., further it is the evidence on record that the vehicle was chased by the Police PCR Van" and the plea that, "the present case is of collective friendship outing turned into gang rape" and the plea that, "MLC conducted on accused Sandeep Yadav does not reveal anything which 159 of 235 160 FIR No. 63/06 PS - Kanjhawala can prove anything which constitutes the offence of rape" and the plea that, "the prosecutrix has never alleged any offence of rape by the accused Sandeep Yadav" and the plea that, "the association of accused Sandeep Yadav with accused Deepak Malik is not independent and the complainant and the accused Deepak Malik were friends known to each other, no such act has been committed by the accused Sandeep Yadav which might have facilitated in the offence as alleged on main accused Deepak Malik, no abetment or accomplishment has been proved nor the association of the accused Sandeep Yadav has helped to commit the alleged offence hence the same is not covered under the definition of Gang Rape, punishable under Section 376 (2)(g) of Indian Penal Code"

and the plea that, "the accused Deepak Malik was known to complainant though in past through accused Sandeep Yadav but it was mere a friendship and no meeting of mind or agreement between the other accused ever existed to commit a crime, since the complainant was common friend of accused Deepak Malik and accused Sandeep Yadav and it was only on request of the accused Deepak Malik never having any intention to commit crime just to wander here and there and to pass the time the accused Sandeep Yadav associated with accused Deepak Malik

160 of 235 161 FIR No. 63/06 PS - Kanjhawala & Manjeet having no common intention to commit a crime and never it was nurtured in common intention and nowhere the complainant has alleged any nurturing act against the accused Sandeep Yadav other than that while sitting on non driver front seat caught hold of her hand which is never possible while sitting on a seat mounted with head rest it is impossible to caught hand to facilitate the putting off the jeans as alleged or to commit any crime, such allegations have no cogent probability and sustainability and the act of the accused Sandeep Yadav does not fall under the ambit of Section 376 (2)(g) of IPC or in any other sections under which the accused Sandeep Yadav is charged", are concerned, the same are found to have no substance in view of the specific and categorical testimony of PW4 - prosecutrix as reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4

- prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. In the witness box she has withstood the test of cross­examination and her testimony is consistent throughout. Her version on the core spectrum of crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

161 of 235 162 FIR No. 63/06 PS - Kanjhawala So far as the theory propounded by the Learned Counsel for the accused Sandeep Yadav that, "there exists no system in Maruti­800 vehicle which can lock the gates and all the four occupants are allowed to open the lock since it is by only one knob, the complainant of her own kept sitting in the vehicle which is owned by the accused Deepak Malik and was having ad­idem with the present person in the vehicle, no use of force is assessable as alleged since two of the boys were sitting on front seat they cannot force or with hold the complainant it was only accused Sandeep Yadav, if the story of the complainant is believed that accused Sandeep Yadav was also a stranger how could she believed the accused, both complainant and the accused having independent doors to fled or keep close" and the theory propounded by the Learned Counsel for the accused Sandeep that, "the complainant is a judo player and is versed with the judo activities which at least could have provided self defence to the complainant, the said area of Peera Garhi is so crowded use of force for abduction/kidnapping as alleged is not possible, the complainant 162 of 235 163 FIR No. 63/06 PS - Kanjhawala had ample time to get rid of the accused without any hue and cry", and the theory propounded by the Learned Counsel for the accused Sandeep that, "the complainant asserts that she was taken to a farm house and Deepak started molesting her and on a gun point the clothes were asked to be taken off and in the same condition the complainant was forced or put to enter in the vehicle which is beyond imagination and away from probabilities, a judo player can handle more than four boys, in the present case on the rear seat only one Deepak was sitting, to rope in the Sandeep the complainant has alleged that the accused Sandeep caught her hand while sitting on the front non driving seat which in a vehicle Maruti - 800 is far from possibility and no such holding as alleged is possible since the cabin of the Maruti Car of seat is not more than 5 feet and on the rear seat a rim of stepny was also lying, in a cabin of 20'' X 20'' from non driving side to rear of driving side no one can hold or catch or restrain anybody", and the theory propounded by the Learned Counsel for the accused Sandeep that, "the condom alleged to be used as seized by PW4/B, nowhere it is described or explained either was packed, 163 of 235 164 FIR No. 63/06 PS - Kanjhawala when unpacked, when was wear prior to taking off the jeans by the accused was worn or after the putting off the jeans the said was used and how in a Maruti Car can be worn, who bought and brought the condom the complainant herself or the alleged accused is a mystery"

and the theory propounded by the Learned Counsel for the accused Sandeep that, "even if the prosecution version is upheld the complainant jumped down from the running car no bruise, injury was found and in the statement given u/s 160 (be read as 161 Cr.P.C.) the complainant says that while the vehicle was stopped with the help of villagers the complainant left the vehicle, shoes were lying in the vehicle when the shoes were unfastened, such kind of taking off shoes takes place when consent is with willingness, the incident happens, the complainant kept on meeting with accused Sandeep Yadav is admitted in Ex. PW3/C (be read as Ex. PW4/A)" and the theory propounded by the Learned Counsel for the accused Sandeep that, "the vehicle seats were having head rests and it is admitted by the PW4 complainant in Ex. PW3/C (be read as Ex. PW4/A), that the accused Sandeep Yadav was sitting on non driving front seat (commonly

164 of 235 165 FIR No. 63/06 PS - Kanjhawala known as conductor seat) it is alleged that the hands of complainant were caught while sitting on the seat in Maruti 800 vehicle having a box area of 58'' X 30'' cannot hold the hands as alleged" and the theory propounded by the Learned Counsel for the accused Sandeep that, "the 5th wheel called a steepny was lying on the rear seat of the vehicle as shown in Ex. PW6/A1 to A10 leaving no place on the rear seats for an offence as alleged", are concerned, it is evident from the record, that during the cross­examination of PW4 - prosecutrix the said accused Sandeep did not voice his concern or raised any apprehension on the aspects regarding which the said theories have been floated. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

It cannot be said that prosecution must meet each and every hypothesis put forward by the accused howsoever far fetched and fanciful it may be.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court 165 of 235 166 FIR No. 63/06 PS - Kanjhawala has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

At the cost of repetition, it is settled law that if there is no cross­examination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

So far as the medical/gynaecological examination of PW4 - prosecutrix, is concerned, the same has been discussed and analysed here­in­before.

At the cost of repetition, PW1 - Dr. P. C. Prabhakar, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that on 22/05/2006, at about 1:50 a.m. prosecutrix (name withheld) D/o Kamal Manna, aged about 16 years was brought to Hospital by SI Sudesh for medical examination with the alleged history of sexual assault as told by the patient herself as well as Kamal Manna. He examined the patient and 166 of 235 167 FIR No. 63/06 PS - Kanjhawala found no external injury on exposed parts and he referred the patient to Gynaecologist, on duty, for further examination and opinion. His MLC in this regard is Ex. PW1/A which bears his signatures at point 'B'.

Despite grant of opportunity PW1 - Dr. P. C. Prabhakar was not cross­examined on behalf of the accused.

PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that she has seen MLC No. 7193 of patient/prosecutrix (name withheld) which bears medical examination notes in the hand of Dr. Monica as marked in Red. Dr. Monica has since left the services of Sanjay Gandhi Hospital and her present whereabouts are not known. She is however well acquainted with her (Dr. Monica) handwriting and signatures having worked along side her. The medical examination notes in the hand of Dr. Monica are Ex. PW2/B and bears her signatures at point 'A'.

During her cross­examination, PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that :­ "I have no personal knowledge about the present record and this MLC was not prepared in my presence."

167 of 235 168 FIR No. 63/06 PS - Kanjhawala There is nothing in the cross­examination of PW2 - Dr. Manisha so as to impeach her creditworthiness.

As regards non­finding of any injury on the body of the prosecutrix is concerned, the absence of any injury does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

Emission of semen or leaving of seminal stains or producing of any injury to the genitals is not necessary to constitute the offence of rape. Complete penetration or partial penetration of penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. (Vide Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 & Parikh's Textbook of Medical jurisprudence and Toxicology).

168 of 235 169 FIR No. 63/06 PS - Kanjhawala Explanation appended to Section - 375 IPC clearly provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

In case 'O. M. Baby (Dead) by LRs Vs. State of Kerala', 2012 VI AD (S.C.) 521, the Hon'ble Supreme Court held that absence of injuries or mark of violence on the person of the prosecutrix may not be decisive, particularly, in a situation where the victim did not offer any resistance on account of threat or fear meted out to her.

It is also to be noticed that in case, 'Ranjit Hazarika Vs. State of Assam', (1998) 8 SCC 635, the Hon'ble Supreme Court observed that non­rupture of hymen or absence of injury on victim's private parts does not belie the testimony of the prosecutrix.

As regards non­finding of any injury on the body of accused Deepak Malik is concerned, the absence of any injury on the body of accused Deepak Malik does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

169 of 235 170 FIR No. 63/06 PS - Kanjhawala The medical and virility evidence of accused have been discussed and analysed here­in­before. At the cost of repetition, PW12 - Dr. V. K. Jha, Medical Officer, BJRM Hospital, Delhi has deposed that on 22/05/2006, he was posted as Medical Officer in the Mortuary of Sanjay Gandhi Memorial Hospital. On that day, he medically examined one Manjeet, Deepak Malik and Sandeep Yadav brought by the Police for examination of sexual potency. The detailed medical examination report of Manjeet is Ex. PW12/A bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Deepak Malik is Ex. PW12/B bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act. The detailed medical examination report of Sandeep Yadav is Ex. PW12/C bearing his signatures at point 'A' and he opined that there was nothing to suggest that the person was incapable of performing sexual act.

During his cross­examination on behalf of accused Deepak Malik, PW12 - Dr. V. K. Jha has deposed that :­ "I did not observed (observe) any scratch marks over the body of accused Deepak Malik. It is wrong to suggest that I am 170 of 235 171 FIR No. 63/06 PS - Kanjhawala deposing falsely at the instance of IO."

There is nothing in the cross­examination of PW12 - Dr. V. K. Jha so as to impeach his creditworthiness.

Despite grant of opportunity, PW12 - Dr. V. K. Jha was not cross­examined on behalf of accused Sandeep and Manjeet.

There is nothing in the cross­examination of PW12 - Dr. V. K. Jha so as to impeach his creditworthiness.

As regards the plea raised by Learned Counsel for accused Sandeep Yadav that, "in the statement of prosecutrix it has been alleged that the accused Sandeep Yadav has been bitten by tooth but the MLC of accused Sandeep Yadav exhibited as Ex. PW12/C specially mentions that there are no marks of tooth bite as alleged, is concerned, on careful perusal and analysis of MLC of accused Sandeep Yadav Ex. PW12/C, it is not found specially mentioned therein that "there are no marks of tooth bite" as claimed by the Learned Counsel for the accused. Moreover non­ finding of any tooth bite injury on the body of accused Sandeep Yadav does not falsify the case of the prosecution which is otherwise proved on 171 of 235 172 FIR No. 63/06 PS - Kanjhawala record by clear, cogent and convincing evidence.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

28. Learned Counsel for accused Manjeet submitted that PW7 - ASI Suresh Chand stated on SA that "On 21/05/2006, I was posted as In­ charge PCR Cdr. 69 and I on duty from 8:00 a.m. to 8:00 p.m. at about 7:00 p.m. we received a call that one Maruti car 800CC of white colour had ran towards Kanjhawala after taking a girl. Number of the car is DL­6CD­6807. Thereafter, he chased the car and the car ran towards village Karala and they stopped the car near School in village Karala. The two boys were apprehended from the car. The name of the boys came to know after inquiry as Sandeep and Deepak. The driver of the car ran away from the spot after leaving the car." Whereas, the prosecutrix stated on SA that "I was crying and raising a lot of hue and cry then one old aged person saw me and heard me and he along with a number of other ladies who were also standing nearby asked some boys who were present there with their motorcycles to save me. However, the 172 of 235 173 FIR No. 63/06 PS - Kanjhawala said boys did not stop the car and upon which some motorcyclists went ahead and made the car to stop after they parked their motorcycle on the way of the car. After great persuasion only and that too when the ladies threw stones on the car that the doors of the car were opened and I as a result fell down on the road. However, Deepak and Sandeep were caught hold off by the persons present over there but Manjeet fled away from the spot after leaving the car over there. I was taken to the house of the said old aged person by the villagers and after some time Police came over there". Learned Counsel further submitted that the PW10 - Dev Raj, Public Witness and the PW18 - Deepak Mathur, Public Witness did not support the story of the prosecutrix and Police officials, as they became hostile.

Learned Counsel for accused Sandeep Yadav submitted that the PW18 being the witness of prosecution totally controverted the concocted story of the prosecution and resiled from the statement wherein the witness has deposed that he never gave any statement. In such a mechanical way the investigating agency after inquiring from the accused Manjeet since it was only on 22/05/2006 threatening to the 173 of 235 174 FIR No. 63/06 PS - Kanjhawala accused and forcing the accused to give the details of friend has fabricated the story which proves the idiom that Police can make a rope snake and snake a rope. If the version of PW18 is relied upon the rape never occurred and the entire story seems concocted due to the contradictions in the statements of witnesses.

I have carefully perused and analysed the evidence on record.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

The testimony of PW7 - ASI Suresh Chand has been detailed and discussed here­in­before.

174 of 235 175 FIR No. 63/06 PS - Kanjhawala On careful perusal and analysis, the testimony of PW7 - ASI Suresh Chand has been found to be clear, cogent and inspiring confidence. There is nothing in his cross­examination so as to impeach her creditworthiness. The said PW has deposed regarding the facts as to what he acted, perceived and observed.

So far as the plea raised by the Learned Counsel for accused Manjeet and Sandeep Yadav that PW10 - Dev Raj and PW18 - Deepak Mathur, the public witnesses did not support the story of the prosecutrix and the Police officials, as they became hostile, is concerned, mere hostility of said PWs (PW10 - Dev Raj and PW18 - Deepak Mathur) does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Moreover, PW10 - Dev Raj has corroborated the case of the prosecution in material particulars on the aspects of hearing of screaming of one girl from inside the Maruti 800 Car in the year, 2006, exact date he does not remember, at about 7:00/7:30 p.m. and of its passing at high speed.

PW10 - Dev Raj during his examination­in­chief has specifically deposed which is reproduced and reads as under :­ "I do not remember the exact date but it was in the year, 2006, I was standing in front of my house at about 7:00/7:30 p.m. I saw a 175 of 235 176 FIR No. 63/06 PS - Kanjhawala Maruti 800 was coming from the side of Bus Stand towards my house and when the said Maruti Car 800 approached near my house, I heard screaming of one girl inside the car. The said car passed through my house at high speed. The public persons were gathered at the chowk situated near my house. I made a call to the Police by dialing 100 No. from my mobile bearing connection no. 9213866512. I could not see the occupants of the car as the car was moving in high speed. I informed the PCR that I heard some notice (noise) from the Maruti car, which I did not like. No inquiry was made from me by the Police in connection with this case."

(Underlined by me) During his cross­examination by the Learned Addl. PP for the State recorded on 23/10/2009, PW10 - Dev Raj has specifically deposed that :­ "It is correct that on 28/05/2006, I was standing in front of my house at about 7:00 p.m. I do not remember whether the registration no. of Maruti Car was DL­6CD­6807. It is correct that colour of Maruti Car was White. It is correct that the said car came from the side of main road and went away towards the side of Village Kanjhawala."

Despite grant of opportunity, PW10 - Dev Raj was not cross­examined on behalf of the accused.

176 of 235 177 FIR No. 63/06 PS - Kanjhawala It is settled legal proposition that the dependable part of the evidence of a hostile witness can be relied on.

In case of "Rameshbhai Mohanbhai & Ors. Vs. State of Gujrat" 2010 XI AD (S.C.) 53, the Hon'ble Supreme Court held that :­ "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross­examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. [Vide Bhagwan Singh Vs. State of Haryana 1976 SCC (Cri) 7, Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Cri) 566, Syad Akbar Vs. State of Karnataka 1980 SCC (Cri) 59 and Khujji Vs. State of M.P. 1991 SCC (Cri) 916] In State of U.P. Vs. Ramesh Prasad Misra 1996 SCC (Cri) 1278, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to the subjected to close the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra 2002 VII AD (S.C.) 249 = 2003 SCC (Cri) 112, Gagan Kanojia Vs. State of Punjab (2008) 1 SCC (Cri) 109, Radha Mohan Singh Vs. State of U.P. 2006 I AD (S.C.) 417 = (2006) 1 SCC (Cri) 661, Sarvesh Narayan Shukla Vs. Daroga Singh (2009) 1 SCC (Cri) 188 and Subbu Singh Vs. State (2009) 2 SCC (Cri) 1106."

177 of 235 178 FIR No. 63/06 PS - Kanjhawala In a criminal prosecution when a witness is cross­examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge to consider the fact in each case whether as a result of such examination and contradiction, the witness stands thoroughly discreted or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the Judge should, as a matter of prudence, discard his evidence in toto ; (Ref. Pandappa Hanumappa Nanamar V. State of Karnataka, (1997) 3 Supreme Today 63).

Evidence of a prosecution witness cannot be rejected in India merely because the prosecution chose to treat him as hostile and cross­examine him. Evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on careful scrutiny thereof ; (Ref. Prithi Vs. State of Haryana, (2010) 8 SCC 536).

The fact that witnesses have been declared hostile does not result in automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be 178 of 235 179 FIR No. 63/06 PS - Kanjhawala taken into account while judging the guilt of an accused ; (Ref. Lalla Srinivasa Rao Vs. State of Andhra Pradesh, AIR 2004 SC 1720).

In case 'Himanshu @ Chintu Vs. State (NCT of Delhi)', (2011) 2 SCC 36, the Hon'ble Supreme Court held that the dependable part of the evidence of a hostile witness can be relied on. Thus it is the duty of the Court to separate the grain from the chaff and the maxim falsus in uno falsus in omnibus, has no application in India vide 'Nisar Alli Vs. The State of Uttar Pradesh', AIR 1957 SC 366.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

29. Learned Counsel for accused Sandeep Yadav submitted that the complainant witnessed as PW4 in her statement has declared that at Rani Khera, one old person alongwith some ladies asked some boys to help the complainant and the said boys and ladies stopped them and ladies threw stones on the Car, the prosecution has not put any public witness who were eye witness and as per the statement of the 179 of 235 180 FIR No. 63/06 PS - Kanjhawala complainant were present there at the site of arrest of accused Sandeep Yadav and other co­accused. He further submitted that the old person somewhere named as Babaji, Masterji, Old Man has not been examined who is an eye witness, knows all the truth. He further submitted that despite the presence of the huge public at site the mobiles have been seized without taking the public witness since the mobile of the prosecutrix had to be abandoned.

I have carefully perused and analysed the evidence on record.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

Undisputably, public witnesses namely PW10 - Dev Raj and PW18 - Deepak Mathur have been produced and examined by the 180 of 235 181 FIR No. 63/06 PS - Kanjhawala prosecution whose evidence has been discussed and analysed here­in­ before. In the circumstances, it does not lie in the mouth of accused Sandeep Yadav that no public witnesses have been produced and examined by the prosecution.

PW24 - Inspector Sudesh Dahiya IO during the course of her cross­examination on behalf of accused Deepak Malik has specifically deposed, which is reproduced and reads as under :­ "I requested number of independent witnesses to join the proceedings but all of them expressed their inability and went away from there. I did not mention the aforesaid facts either in my case diary on in the charge­sheet that I had requested independent persons to join the spot proceedings."

"I have requested the independent public persons to witness the above said seizure memos Ex. PW4/D, Ex. PW4/E and Ex. PW4/F, but they declined to do so. However, I had not mentioned this fact in my case diary."

(Underlined by me) Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it, though, the neighbourhood may be replete with other residents.

181 of 235 182 FIR No. 63/06 PS - Kanjhawala In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that :­ "The over­insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non­examination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also."

It is a matter of common experience that public persons do not come forward to assist the Police in the investigation.

Non­joining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

182 of 235 183 FIR No. 63/06 PS - Kanjhawala In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that :­ "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."

The mere fact of non­joining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

30. Learned Counsel for accused Sandeep Yadav submitted that the statement of the complainant deals that her shoes were unfastened and were lying in the Car where they were unfastened is not said anywhere and why the Police impounded the shoes. Even after the stones were pelted on the car in the mechanical inspection no glass 183 of 235 184 FIR No. 63/06 PS - Kanjhawala broken has been reported. The vehicle was seized immediately after the alleged incident in presence of complainant, while the time is of essence in such offences but nowhere the prosecution has stated the duration of time and how the jeans and underwear in a rear seat can be unfastened and where the same were unfastened is not clear from the statement, where the condom was worn as alleged, who had the condom, the purchase of the said condom has not been put on record by the Police/prosecution authorities, the wrapper or blank packet of condom was even not reported, the mobile of the complainant has not been seized and put as evidence and no record of calls have been made available by the prosecution, the alleged offence is of kidnapping, extortion, gang rape, in such a heinous offence the prosecution shall have taken care of the evidence appropriately to enable the Court to do justice. He further submitted that the prosecution has not seized the mobile phone of the complainant which could have established the cordial relations between the accused persons and the complainant. He further submitted that statement of complainant/prosecutrix Ex. PW3/C (be read as Ex. PW4/A) has been recorded in the Police Station and not at site, no time has been mentioned in the statement, no other person shown as witness.

184 of 235 185 FIR No. 63/06 PS - Kanjhawala He further submitted that the Police kept all the process pending till 1:00 p.m. such as MLC, registration of FIR, arresting of the accused, sealing of the evidences, statements of witnesses to wait any settlement between the accused, complainant and Police, otherwise the case as is before the Court was fabricated, concocted and registered as was warned by the Police authorities and all the means and evidence were prepared and the entire story was knitted which is apparent from the statements taken u/s 161 Cr.P.C. and as witnesses to the case, Police ignoring the vital pieces of substance and evidence such as the second underwear, existence of condom, mobile of prosecutrix, shoes unfastened in what circumstances, possibility of interaction among the complainant and accused since long last, putting the call record for only two accused from three days, working of mobile of two accused till 22/05/2006 despite surrender and seized immediately at 7:00 p.m. On 21/05/2006, planting of toy pistol, how the toy pistol was found in vehicle when the allegation is that the accused committing rape threatened the complainant with that toy pistol. He further submitted that all the recoveries are made on 22/05/2006 wherein the recoveries were under the possession immediately on 21/05/2006, further no time has been mentioned in the fird of recovery.

185 of 235 186 FIR No. 63/06 PS - Kanjhawala He further submitted that PW1 - Dr. P. C. Prabhakar states that the complainant/victim was brought to the Hospital only at 1:50 a.m. of 22/05/2006. He further submitted that Ex. PW19/A establishes jeans and underwear of brown colour whereas the CFSL (be read as FSL) pullinda when opened the colour of underwear was marjenda while the same when was packed was claimed as blue colour.

Learned Counsel for accused Deepak Malik submitted that no recoveries whatsoever were made in the presence of the prosecutrix and the entire proceedings have been fabricated and manipulated to suit the nefarious ends of the Investigating Agency.

I have carefully perused and analysed the evidence on record.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ 186 of 235 187 FIR No. 63/06 PS - Kanjhawala Prosecutrix on the core spectrum of the crime has remained intact.

So far as the plea raised by the Learned Counsel for the accused that, "the statement of the complainant deals that her shoes were unfastened and were lying in the Car where they were unfastened is not said anywhere and why the Police impounded the shoes. Even after the stones were pelted on the car in the mechanical inspection no glass broken has been reported. The vehicle was seized immediately after the alleged incident in presence of complainant, while the time is of essence in such offences but nowhere the prosecution has stated the duration of time and how the jeans and underwear in a rear seat can be unfastened and where the same were unfastened is not clear from the statement, where the condom was worn as alleged, who had the condom, the purchase of the said condom has not been put on record by the Police/prosecution authorities, the wrapper or blank packet of condom was even not reported", and the plea that, "the prosecution has not seized the mobile phone of the complainant which could have established the cordial relations between the accused persons and the complainant", and the plea that, "statement of complainant/prosecutrix Ex. PW3/C (be read as Ex. PW4/A) has been recorded in the Police Station and not at 187 of 235 188 FIR No. 63/06 PS - Kanjhawala site, no time has been mentioned in the statement, no other person shown as witness" and the plea that, "the Police kept all the process pending till 1:00 p.m. such as MLC, registration of FIR, arresting of the accused, sealing of the evidences, statements of witnesses to wait any settlement between the accused, complainant and Police, otherwise the case as is before the Court was fabricated, concocted and registered as was warned by the Police authorities and all the means and evidence were prepared and the entire story was knitted which is apparent from the statements taken u/s 161 Cr.P.C. and as witnesses to the case, Police ignoring the vital pieces of substance and evidence such as the second underwear, existence of condom, mobile of prosecutrix, shows unfastened in what circumstances, possibility of interaction among the complainant and accused since long last, putting the call record for only two accused from three days, working of mobile of two accused till 22/05/2006 despite surrender and seized immediately at 7:00 p.m. On 21/05/2006, planting of toy pistol, how the toy pistol was found in vehicle when the allegation is that the accused committing rape threatened the complainant with that toy pistol" and the plea that, "all the recoveries are made on 22/05/2006 wherein the recoveries were under the possession immediately on 188 of 235 189 FIR No. 63/06 PS - Kanjhawala 21/05/2006, further no time has been mentioned in the fird of recovery"

and the plea that, "PW1 - Dr. P. C. Prabhakar states that the complainant/victim was brought to the Hospital only at 1:50 a.m. of 22/05/2006" and the plea that, "Ex. PW19/A establishes jeans and underwear of brown colour whereas the CFSL pullinda when opened the colour of underwear was Marjenda while the same when was packed was claimed as blue colour", and the plea that "no recoveries whatsoever were made in the presence of the prosecutrix and the entire proceedings have been fabricated and manipulated to suit the nefarious ends of the Investigating Agency", are concerned, it is evident from the record that during the cross­examination of PW24 - SI Sudesh Dahiya IO, the said accused did not voice their concerns or raised any apprehension on the aspects regarding which the pleas have been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused are to blame themselves and none­else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court

189 of 235 190 FIR No. 63/06 PS - Kanjhawala has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

At the cost of repetition, it is settled law that if there is no cross­examination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

31. Learned Counsel for accused Sandeep Yadav submitted that the complainant was introduced to accused Sandeep Yadav by PW16 ­ Prashant Sharma @ Bobby.

I have carefully perused and analysed the evidence on record.

190 of 235 191 FIR No. 63/06 PS - Kanjhawala Although, the related plea raised by the Learned Counsel for the accused Sandeep Yadav has been analysed and discussed here­in­before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for accused Sandeep Yadav.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

So far as the theory propounded by the Learned Counsel for the accused Sandeep Yadav that, "the complainant was introduced to accused Sandeep Yadav by PW16 ­ Prashant Sharma @ Bobby", is concerned, the said theory so propounded is found to have no substance in view of as to what has been deposed by PW16 - Prashant Sharma @ Bobby and PW4 - prosecutrix during their examination­in­ chief. During his examination­in­chief, PW16 - Prashant Sharma @ 191 of 235 192 FIR No. 63/06 PS - Kanjhawala Bobby has specifically deposed that it was accused Sandeep Yadav who had taken her (PW4 - prosecutrix) mobile number from his (PW16 - Prashant Sharma @ Bobby) mobile instrument.

At the cost of repetition, PW16 - Prashant Sharma @ Bobby during his examination­in­chief has deposed that :­ "In the year 2006, I was working as Senior Executive in a private company and used to play Judo. Accused Sandeep present in the Court today is my friend and was residing in my locality. Prosecutrix (name withheld) was also my friend. I knew her as she was also sports person and used to play at Bal Bhavan which is a (an) organization near ITO. I had mobile phone number of prosecutrix (name withheld) on which we used to talk. Accused Sandeep had taken her mobile number from my mobile instrument. Accused Sandeep and prosecutrix (name withheld) used to talk with each other but, I cannot say about their talks."

(Underlined by me) At the cost of repetition, PW4 ­ Prosecutrix during her examination­in­chief has deposed that :­ "In the year 2006, I used to learn 'Judo' at Bal Bhawan, New Delhi. One boy, Bobby (PW16 - Prashant Sharma) also used to undergo training of Judo over there and he was thus known to me. I had a close friendship with Bobby. However, Sandeep who was a friend of Bobby took my mobile phone number from the phone of Bobby and on his own 192 of 235 193 FIR No. 63/06 PS - Kanjhawala he started ringing me up. He used to ask me to talk to him but when I refused then he stated that atleast I can talk to him treating him as my brother. During all this Sandeep talked to me for about 2/3 occasions on telephone."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

32. Learned Counsel for accused Sandeep Yadav submitted that as per Ex. PW3/C (be read as Ex. PW4/A) the prosecution has held that the complainant jumped from the vehicle.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for the accused Sandeep Yadav that, "as per Ex. PW4/A the prosecution has held that the complainant jumped from the vehicle", is concerned, it is not made clear by the Learned Counsel for the accused as to what he intends to convey and what benefit he intends to reap from the plea so raised by picking out a sentence in isolation from the entire testimony of 193 of 235 194 FIR No. 63/06 PS - Kanjhawala PW4 ­ prosecutrix. At the cost of repetition, it is a settled principle that the statements of the witnesses have to read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

At the cost of repetition, the testimony of PW4 - prosecutrix has reproduced, discussed and analysed here­in­above. The testimony of PW4 - prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. In the witness box she had withstood the test of cross­examination and her testimony is consistent throughout. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

At the cost of repetition, on analysing the entire testimony of PW4 ­ Prosecutrix, it transpires that she has described the scenario implicating accused Deepak Malik, Sandeep Yadav and Manjeet to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Deepak Malik acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet. The accused have failed to elicit any material or relevant discrepancies or 194 of 235 195 FIR No. 63/06 PS - Kanjhawala inconsistencies despite her searching cross­examination. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

33. Learned Counsel for accused Sandeep Yadav submitted that no finger prints have been drawn from the car or the pistol.

I have carefully perused and analysed the evidence on record.

As far as the plea raised by the Learned Counsel for the accused that, "no finger prints have been drawn from the car (Ex. PW24/5)", is concerned, PW17 - Inspector Ravi Singh, In­charge Crime Team during his examination­in­chief has specifically deposed that :­ "Accordingly, I alongwith my team illuminated the tower light and search light and firstly, photographed the car bearing registration no. DL 6CD 6807 white Maruti Car in the premises of PS. 195 of 235 196 FIR No. 63/06 PS - Kanjhawala During the inspection of the car, no chance prints could be detected."

(Underlined by me) So far as the plea raised by the Learned Counsel for the accused that no finger prints have been drawn from the pistol (Ex. PX3), is concerned, it is evident from the record that neither during the cross­ examination of PW17 - Inspector Ravi Singh nor during the cross­ examination of PW24 - Inspector Sudesh Dahiya IO, the said accused voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

196 of 235 197 FIR No. 63/06 PS - Kanjhawala At the cost of repetition, it is settled law that if there is no cross­examination of a prosecution witness in respect of a statement of fact, it will only show the admission of that fact (Ref.: Wahid Ahmed and Ors. Vs. State (NCT of Delhi) 2011 VII AD (DELHI) 276).

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

34. Learned Counsel for accused Sandeep Yadav submitted that as per Ex. PW3/C (be read as Ex. PW4/A), the vehicle is shown as recovered from accused Sandeep Yadav and accused Deepak Malik no specific averments are made from which place the pistol was recovered.

I have carefully perused and analysed the evidence on record.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is 197 of 235 198 FIR No. 63/06 PS - Kanjhawala nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

As far as the plea raised by the Learned Counsel for the accused that, "as per Ex. PW4/A no specific averments are made from which place the pistol (Ex. P3) was recovered", is concerned, PW7 - ASI Suresh Chand during his examination­in­chief has specifically deposed that, "From the search of the car one toy pistol was recovered. I also handed over toy pistol to the Police. IO seized the same and IO recorded my statement" and proved the toy pistol as Ex. P3. PW24 - Inspector Sudesh Dahiya IO in her examination­in­chief has specifically deposed that, "HC Suresh also produced one toy pistol, which according to him recovered from the Maruti Car. I prepared a sketch of toy pistol which is Ex. PW24/A which bears my signature at point 'A'. Measurements of the pistol have been taken by me and thereafter it was kept in a pullinda and sealed with the seal of 'SD'. And same was seized vide seizure memo Ex. PW4/D which bears my signature at point 'B'." and proved the toy pistol as Ex. P3.

PW4 - prosecutrix during her examination­in­chief has 198 of 235 199 FIR No. 63/06 PS - Kanjhawala specifically deposed that, "Later on I also came to know that the said pistol alleged to have been recovered from Deepak was a toy pistol. The seizure memo of the same Ex. PW4/D also bears my signatures at point 'A'." and proved the toy pistol as Ex. P3.

There is nothing in the cross­examination of said PWs so as to impeach their creditworthiness.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

35. Learned Counsel for accused Sandeep Yadav submitted that in the Ex. PW3/C (be read as Ex. PW4/A) the time mentioned is 4:00 p.m. to 7:00 p.m. wherein the time is shown as 8:30 p.m. I have carefully perused and analysed the evidence on record.

It is not made clear by the Learned Counsel for the accused as to what he intends to convey from the plea so raised. The testimony of PW3 - ASI Kanwal Singh, the Duty Officer has been detailed and 199 of 235 200 FIR No. 63/06 PS - Kanjhawala discussed here­in­before.

At the cost of repetition, PW3 - ASI Kanwal Singh in his examination­in­chief has deposed that on 21/05/2006, he was working as Duty Officer from 4:00 p.m. onwards till the night intervening 21/05/2006 and 22/05/2006. On that day, at about 7:15 p.m., he received a call from HC Jagdish of PCR that in a Maruti Car No. DL 6CD 6807, three boys have run away with a girl. He accordingly, recorded DD No. 27A, dated 21/05/2006 in this regard and informed about it to HC Balraj on telephone and sent a copy of the DD entry to him through Constable Dalbir for further necessary action. He has brought the 'Rojnamcha' containing original DD entry 27A. True copy of the same is Ex. PW3/A (original seen and returned). However, thereafter at about 12:15 a.m. in the night W/SI Sudesh Dahiya handed over to him a rukka Mark 'A' and on the basis of it he recorded FIR No. 63/06 under sections 363/376­2(G)/506 IPC r/w 25 Arms Act, 1959. after recording the FIR, he handed over copy of the same alongwith rukka to W/SI Sudesh Dahiya in the PS. He has brought register containing the original FIR. Carbon Copy of the same is Ex. PW3/B and it bears his signatures at point 'A' (original seen and returned). He also recorded DD No. 2A in 200 of 235 201 FIR No. 63/06 PS - Kanjhawala the Rojnamcha with respect to the registration of the case. He thereafter made an endorsement to that effect in the rukka and his endorsement thereof is Ex. PW3/C and bears his signatures at point 'A'. Vide DD No. 2A, he also asked SI Ravi Singh of Crime Team to go to the spot. He has brought the 'Rojnamcha' containing the original DD Entry No. 2A, photocopy of the same is Ex. PW3/D (original seen and returned).

Despite grant of opportunity, PW3 - ASI Kanwal Singh was not cross­examined on behalf of the accused.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

36. Learned Counsel for accused Sandeep Yadav submitted that the complainant did not have any knowledge of the toy pistol but the Police kept on fabricating the recovery of pistol without taking the finger prints from the pistol and framed the Section 25 of 1959 under the Arms Act to threaten the accused to bow down and threatened to implicate falsely which they did.

201 of 235 202 FIR No. 63/06 PS - Kanjhawala I have carefully perused and analysed the evidence on record.

Although, the related plea raised by the Learned Counsel for the accused Sandeep Yadav has been analysed and discussed here­in­before, yet in the interest of justice, I shall deal with the plea so raised by the Learned Counsel for accused Sandeep Yadav.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

As far as the plea raised by the Learned Counsel for the accused Sandeep Yadav that, "the complainant did not have any knowledge of the toy pistol (Ex. P3)", is concerned, with due respect it 202 of 235 203 FIR No. 63/06 PS - Kanjhawala appears that Learned Counsel for the accused has either misread the evidence or not read the evidence on the record. The said plea so raised is found to have no substance in view of the specific and categorical testimony of PW4 - prosecutrix as reproduced, discussed and analysed here­in­before.

It is pertinent to reproduce the relevant part of examination­ in­chief of PW4 - prosecutrix which reads as under :­ "Upon reaching Peera Garhi Chowk I told Sandeep that as Bobby is not present there and that I should be now brought back to my house and upon which Sandeep stated that they will drop me at my house via the way going through Rani Khera. I however, insisted that I instead be dropped over there itself and that I will go to my house on my own. However, the said three boys did not allow me to get down and even locked the doors of the car from inside. Sandeep thereafter again assured me that nothing will happen and that he will certainly drop me at my house. However, the said three boys directly took me to a Farm House at Rani Khera which belonged to one cousin of Manjeet. They took me to a room over there. However, prior to it when I was not getting down from the car as I was resisting and opposing the said three boys as to why I was brought over there then Deepak showed me a pistol and thereby forcibly took me to the room inside after lifting me in his lap. Deepak after taking me inside the room locked it from inside and at that time Sandeep and Manjeet were sitting inside (be read in place of 'inside' as 'outside' in view of Court observation dated 31/01/2009). Deepak tried to molest me as he asked me to take off my clothes and 203 of 235 204 FIR No. 63/06 PS - Kanjhawala during all this I started raising hue and cry shouting loudly then upon this the cousin brother of Manjeet who was already present over there came and asked Deepak to take me away as I was raising a lot of hue and cry and he stated that if his father will come then he will give beating to him. Upon this when Deepak opened the door then I tried to run out then Manjeet caught hold me and made me to again sit inside the car. This time now Deepak sat alongwith me on the rear seat and Manjeet started driving the car while Sandeep was sitting on the seat adjacent to the driver. Deepak pressed my mouth as I was raising a lot of hue and cry."

(Underlined by me) So far as the plea raised by the Learned Counsel for the accused that, "The Police kept on fabricating the recovery of pistol without taking the finger prints from the pistol and framed the Section 25 of 1959 under the Arms Act to threaten the accused to bow down and threatened to implicate falsely which they did", is concerned, it is evident from the record that neither during the cross­examination of PW17 - Inspector Ravi Singh nor during the cross­examination of PW24 - Inspector Sudesh Dahiya IO, the said accused voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. They were the only competent witnesses who would have been fully capable of explaining correctly the factual situation. For such failure 204 of 235 205 FIR No. 63/06 PS - Kanjhawala accused is to blame himself and none else.

On careful perusal and analysis of the evidence of the Police witnesses on the record, it is noticed that there is nothing in the statements of the Police officials to suggest that they had any animus against the accused to falsely implicate them in the case or that they have fabricated the evidence in any manner. They have deposed regarding the facts as to what they acted, perceived, observed and experienced. Moreover, as is indicated from the charge­sheet u/s 173 Cr.P.C. also detailed here­in­before, since on finding the pistol as a toy pistol (Ex. P3), the offence u/s 25/54/59 Arms Act, which was initially added in the case, was later on deleted and the accused were not challaned for the offence u/s 25/54/59 Arms Act.

It is also to be noticed that during the recording of evidence of PW7 - ASI Suresh Chand, on the request of Learned Addl. PP for the State, the Learned Predecessor Court has also made some observation with regard to the toy pistol (Ex. P3) which on an apparent look also gives an impression of a genuine pistol. The relevant part of the examination­in­chief of PW7 - ASI Suresh Chand is reproduced and 205 of 235 206 FIR No. 63/06 PS - Kanjhawala reads as under :­ "At this stage, MHC(M) has produced a sealed pullinda sealed with the Court seal. Same is opened and from inside it one toy pistol is taken out and shown to the witness who identified the same as correctly. The toy pistol is already exhibited as P3. Witness has also identified the car from the photographs on the judicial file, which are Ex. PW6/A1 to A10.

At this stage, Learned APP has pointed out that though pistol Ex. P3 has been produced in the Court is a toy pistol but on a apparent look it gives an impression of a genuine pistol. He thus requested the Court to make an observation in this regard. Court observation :­ Though the pistol Ex. P3 as has been produced in the Court is a toy pistol but on an apparent look it gives an impression of that of a genuine pistol and it carries all marks and writing over it an a small fashion. It is directed that MHC(M) shall place on record photographs of the same on record."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

37. Learned Counsel for accused Sandeep Yadav submitted that Jama Talashi is carried just before the arrest and the arrest of accused Sandeep Yadav and Manjeet was made at 7:30 p.m. whereas the Ex. PW4/9 (be read as Ex. PW4/G) establishes the recovery on 22/05/2006, 206 of 235 207 FIR No. 63/06 PS - Kanjhawala the arrest is claimed on 8:30 a.m. on 22/05/2006 the violation of Section 51 of Cr.P.C. has been committed.

I have carefully perused and analysed the evidence on record.

So far as the plea raised relate to recoveries is concerned, the same has already been analysed, discussed and dealt with here­ in­before.

As regards the plea raised by the Learned Counsel for the accused that, "Jama Talashi is carried just before the arrest and the arrest of accused Sandeep Yadav and Manjeet was made at 7:30 p.m. whereas the Ex. PW4/9 (be read as Ex. PW4/G) establishes the recovery on 22/05/2006, the arrest is claimed on 8:30 a.m. on 22/05/2006 the violation of Section 51 of Cr.P.C. has been committed.", is concerned, on careful perusal and analysis of the evidence on record, the timings of arrest and of personal search of accused Deepak Malik, Sandeep Yadav and Manjeet as pleaded are not found to be in consonance with the record. As per the record, accused Deepak Malik and Sandeep Yadav 207 of 235 208 FIR No. 63/06 PS - Kanjhawala were arrested at 8:30 a.m. on 22/05/2006 and that accused Manjeet was arrested at 11:30 a.m. on 22/05/2006 vide arrest memos Ex. PW22/A, Ex. PW22/B and Ex. PW22/C, all dated 22/05/2006 respectively and their personal search memos are Ex. PW4/H, Ex. PW4/G and Ex. PW4/J, all dated 22/05/2006 respectively.

Moreover, even if in the estimation of Learned Counsel for the accused Sandeep Yadav, there was any variation in the time of the arrest and personal search of the accused, the same should have been clarified from PW24 - Inspector Sudesh Dahiya IO, during her cross­ examination. It is evident from the record that during the cross­ examination of PW24 - Inspector Sudesh Dahiya IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame himself and none else.

At the cost of repetition, recently in case 'Mahavir Singh 208 of 235 209 FIR No. 63/06 PS - Kanjhawala Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

38. Learned Counsel for accused Sandeep Yadav submitted that no finger test of cubical, kit or instrumental new method applied on prosecutrix to adjudge the virginity or puberty of the female gynaecology which could have established the routine of the prosecutrix in sexual affairs.

I have carefully perused and analysed the evidence on record.

So far as the medical/gynaecological examination of PW4 - prosecutrix, is concerned, the same has been discussed and analysed 209 of 235 210 FIR No. 63/06 PS - Kanjhawala here­in­before.

At the cost of repetition, PW1 - Dr. P. C. Prabhakar, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that on 22/05/2006, at about 1:50 a.m. prosecutrix (name withheld) D/o Kamal Manna, aged about 16 years was brought to Hospital by SI Sudesh for medical examination with the alleged history of sexual assault as told by the patient herself as well as Kamal Manna. He examined the patient and found no external injury on exposed parts and he referred the patient to Gynaecologist, on duty, for further examination and opinion. His MLC in this regard is Ex. PW1/A which bears his signatures at point 'B'.

Despite grant of opportunity PW1 - Dr. P. C. Prabhakar was not cross­examined on behalf of the accused.

PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that she has seen MLC No. 7193 of patient/prosecutrix (name withheld) which bears medical examination notes in the hand of Dr. Monica as marked in Red. Dr. Monica has since left the services of Sanjay Gandhi Hospital and her 210 of 235 211 FIR No. 63/06 PS - Kanjhawala present whereabouts are not known. She is however well acquainted with her (Dr. Monica) handwriting and signatures having worked along side her. The medical examination notes in the hand of Dr. Monica are Ex. PW2/B and bears her signatures at point 'A'.

During her cross­examination PW2 - Dr. Manisha, Gynae, SR, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi has deposed that :­ "I have no personal knowledge about the present record and this MLC was not prepared in my presence."

There is nothing in the cross­examination of PW2 - Dr. Manisha so as to impeach her creditworthiness.

As regards the plea raised by the Learned Counsel for accused Sandeep Yadav that, "no finger test of cubical, kit or instrumental new method applied on prosecutrix to adjudge the virginity or puberty of the female gynaecology which could have established the routine of the prosecutrix in sexual affairs.", is concerned, it is not made clear by Learned Counsel for the accused as to what he intends to convey 211 of 235 212 FIR No. 63/06 PS - Kanjhawala from the said plea so raised. Does he intend to convey that PW4 - prosecutrix is a girl/woman of "easy virtues" or a girl/woman of "loose moral character".

If it is so, it is not permissible as every woman has a right to protect her dignity and cannot be subjected to rape only for that reason.

In case Narender Kumar Vs. State (NCT of Delhi (2012) 7 SCC 171, the Hon'ble Supreme Court has held as under :­ "Even in cases where there is some material to show that the victim was habitual to sexual intercourse, no inference of the victim being a woman of "easy virtues" or a woman of "loose moral character"

can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated and the Court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of. In view of the provisions of Sections 53 and 54 of the Evidence Act, 1872, unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.

212 of 235 213 FIR No. 63/06 PS - Kanjhawala In 'State Vs. Ramdev Singh', AIR 2004 SC 1290, the Hon'ble Supreme Court observed that even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

39. Learned Counsel for accused Sandeep Yadav submitted that if the story of the prosecution is believed it is very strange in such a heinous offence why the delay was caused in sending the articles to CFSL (be read as FSL) which was sent on only 26/06/2006.

I have carefully perused and analysed the evidence on record.

With due respect, it appears that Learned Counsel for the accused has either misread or not read the evidence on the record. The 213 of 235 214 FIR No. 63/06 PS - Kanjhawala Biological and Serological evidence Ex. PX (Colly.) has been reproduced, discussed and analysed here­in­before.

As per Biological & Serological Report Ex. PX (Colly.), 16 parcels were received in FSL, Rohini on 22/06/2006.

The relevant part of Biological and Serological Report Ex. PX (Colly.) reads as under :­ "To, The Station House Officer, PS : Kanjhawala, Delhi.

Your letter No. 742/SHO/Kanjhawala Dt.

22.06.2006 regarding 16 (Sixteen) Parcel(s) in connection with case FIR No. 63/2006 U/s. 363/376(2G)/506 IPC 25/54/59 A.Act P.S. :

Kanjhawala duly received in this office on 22.06.2006."

PW5 - HC Dilbagh Singh has deposed that on 22/05/2006, he was posted at PS - Kanjhawala as MHC(M). On that day, SI Sudesh Dahiya deposited 17 parcels out of which 11 were sealed with the seal of 'SGM Hospital' and six were sealed with the seal of 'SD' and two mobile 214 of 235 215 FIR No. 63/06 PS - Kanjhawala phones make Nokia and Reliance LG in unsealed condition and a Maruti Car bearing No. DL­6CD­6807 for which he made entry in Register No. 19 at Serial No. 1301. On 22/06/2006, 16 sealed parcels (out of which 11 sealed with the seal of 'SGM Hospital' mentioned above and five were sealed with the seal of 'SD') were sent to FSL, Rohini through Constable Dalbir Singh vide RC No. 149/21 for which he made entry in Register No. 19 at Serial No. 1301. On 24/01/2007, there (these) parcels were received back by the then MHC(M) and an entry has been made by the then MHC(M) in that regard at the same Serial No. i.e. 1301. He has brought original Register No. 19 in Court containing Entry No. 1301, copy of which is Ex. PW5/A (original seen and returned). He has also brought original RC Register containing RC No. 149/21, copy of which is Ex. PW5/B (Original register seen and returned). So long as case property remained with him nobody tampered with the same.

Despite grant of opportunity, PW5 - HC Dilbagh Singh was not cross­examined on behalf of accused Sandeep.

PW22 - HC Dalbir Singh in his examination­in­chief has deposed that :­ 215 of 235 216 FIR No. 63/06 PS - Kanjhawala "On 22/05/2006 (be read as 22/06/2006), SI Sanjita received exhibits of this case from MHC(M) sealed with the seal of SGM Hospital vide RC number of which I do not remember and handed over the same to me for depositing the same at FSL, Rohini. Accordingly, I took the exhibits and deposited the same at FSL, Rohini and obtained the receipt thereof which I handed over to MHC(M) after coming back to PS. So long the case property remained in my possession, the parcels were not tampered with and seals remained intact. The copy of RC is already exhibited as Ex. PW5/B."

There is nothing in the cross­examination, PW22 - HC Dalbir Singh so as to impeach his creditworthiness. He has deposed regarding the facts as to what he acted, perceived and observed.

PW23 - Inspector Sanjita, the subsequent IO during her examination­in­chief has deposed that, "On 22/06/2006, I got deposited the exhibits of this case to FSL through Constable Dalbir Singh."

During her cross­examination, PW23 - Inspector Sanjita has specifically deposed that, "I had sent the exhibits to FSL through RC No. 149/21".

From the aforesaid narration of the said PWs, it is clearly 216 of 235 217 FIR No. 63/06 PS - Kanjhawala indicated that the sealed exhibits/parcels have been deposited in FSL, Rohini without any delay. Moreover, even if in the estimation of Learned Counsel for the accused Sandeep Yadav, there was any delay in sending the articles/parcels to FSL, Rohini, the reasons for the same should have been elicited from PW23 - Inspector Sanjita during her cross­ examination. It is evident from the record that during the cross­ examination of PW23 - Inspector Sanjita, the subsequent IO, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused is to blame himself and none else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in cross­examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

217 of 235 218 FIR No. 63/06 PS - Kanjhawala In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

40. Learned Counsel for accused Sandeep Yadav submitted that the contradictions and variations in the statements of several witnesses proved that the accused Sandeep Yadav has been falsely charged and implicated in the present case and no act of the accused constitutes the offences charged with.

I have carefully perused and analysed the evidence on record.

The testimonies of prosecution witnesses have been reproduced, detailed, discussed and analysed here­in­before.

As far as the plea raised by the Learned Counsel for the accused that, "the contradictions and variations in the statements of several witnesses proved that the accused Sandeep Yadav has been falsely charged and implicated in the present case and no act of the accused constitutes the offences charged with", is concerned, the plea so 218 of 235 219 FIR No. 63/06 PS - Kanjhawala raised is found to be vague and devoid of particulars. Learned Counsel for the accused failed to specify the contradictions and variations in the statements of which witnesses. In view of the specific and categorical testimony of PW4 - prosecutrix, as reproduced, discussed and analysed here­in­before, the plea so raised is found to have no substance. At the cost of repetition, the testimony of PW4 ­ prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. In the witness box she has withstood the test of cross­ examination and her testimony is consistent throughout. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

At the cost of repetition, on analysing the entire testimony of PW4 ­ Prosecutrix, it transpires that she has described the scenario implicating accused Deepak Malik, Sandeep Yadav and Manjeet to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Deepak Malik acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet. The accused have failed to elicit any material or relevant discrepancies or 219 of 235 220 FIR No. 63/06 PS - Kanjhawala inconsistencies despite her searching cross­examination. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

41. Learned Counsel for the accused Deepak Malik submitted that prosecutrix in her cross­examination has admitted to be correct that she had been briefed by the IO before entering the Court Room as to what she was required to state, which goes to show that she was a tutored witness.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for accused Deepak Malik that, "prosecutrix in her cross­examination has admitted to be correct that she had been briefed by the IO before entering the Court Room as to what she was required to state, which goes to show that she 220 of 235 221 FIR No. 63/06 PS - Kanjhawala was a tutored witness", is concerned, no doubt PW4 - prosecutrix during her cross­examination recorded on 31/01/2009 on behalf of accused Deepak Malik has deposed that, "It is correct that today before I entered the Court Room, IO has briefed me as to what I have to state. She however did not tell me as to what probable questions the defence Counsel might ask." At the best this could be stated to be refreshing the memory of the witness. She is not a tutored witness. Had she been a tutored witness then, accused would not have been heard saying that 'she was further cross­examined on the material particulars of her examination­in­chief and was duly confronted with her earlier statements wherein most of the allegations leveled by her were not found recorded'. In the circumstances, nothing more can be read in the said part of the testimony of PW4 - prosecutrix regarding which the plea has been raised. The testimony of PW4 - prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case.

221 of 235 222 FIR No. 63/06 PS - Kanjhawala At the cost of repetition, on analysing the entire testimony of PW4 - prosecutrix, it transpires that she has described the scenario implicating accused Deepak Malik, Sandeep Yadav and Manjeet to be the author of the crime committed upon her, of the committal of the sexual assault upon her by accused Deepak Malik acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet. The accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross­examination. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

42. Learned Counsel for accused Deepak Malik submitted that PW4 - prosecutrix was cross­examined on the material particulars of her examination­in­chief and was duly confronted with her earlier statements wherein most of the allegations levelled by her were not found recorded.

222 of 235 223 FIR No. 63/06 PS - Kanjhawala I have carefully perused and analysed the evidence on record.

The testimony of PW4 ­ Prosecutrix has been reproduced, discussed and analysed here­in­before. At the cost of repetition, the testimony of PW4 ­ Prosecutrix has been found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. There is nothing in her statement to suggest that he had any animus against the accused to falsely implicate them in the case. The version of PW4 ­ Prosecutrix on the core spectrum of the crime has remained intact.

As to what PW4 - prosecutrix has deposed in her examination­in­chief has been reproduced, discussed and analysed here­in­before.

For dealing with the plea so raised by the Learned Counsel for the accused, it is pertinent to reproduce the relevant part of the cross­examination of PW4 - prosecutrix conducted on behalf of accused Deepak Malik recorded on 31/01/2009 which reads as under :­ 223 of 235 224 FIR No. 63/06 PS - Kanjhawala "I had stated in my statement Ex. PW4/A made to the Police that accused Sandeep had taken my phone number from Boby and had started talking to me on his own or that whenever I used to refuse to talk to him, then he used to tell me that atleast I can talk to him treating him as my brother. (Confronted with statement Ex. PW4/A where it is not so recorded). I do not remember whether I stated in my statement Ex. PW4/A or not that on 21/05/2006 at around 4:00/4:15 p.m., accused Sandeep rang me up and told me that Boby is calling me at Nangloi bus stand as he was standing alongwith him over there itself. (Confronted with statement Ex. PW4/A where it is not so recorded). I had also stated in statement Ex. PW4/A that I told Sandeep that if Boby has any work with me, then he can on his own ring me up and that I will not go otherwise or that Sandeep however told me that Boby has misplaced his mobile phone and is thus not able to contact me on phone or that therefore, I went to Nangloi Bus Stand. (Confronted with statement Ex. PW4/A where it is not so recorded). I had also stated in statement Ex. PW4/A that when I saw two other boys already sitting in the car, then I told Sandeep that I will not sit in the car or that Sandeep told me that the other two boys will get down from the car at Peera Garhi Chowk. (Confronted with statement Ex. PW4/A where it is not so recorded). I had stated in statement Ex. PW4/A that at Peera Garhi Chowk when I found that Boby was not present there, then I Asked Sandeep to take me back to my house and upon which Sandeep told me that he will drop me at my house via Rani Khera. (Confronted with statement Ex. PW4/A where it is not so recorded but it is mentioned in the statement that the witness asked Sandeep to drop her at Peera Garhi Chowk but he did not stop the car). I had stated in my statement Ex. PW4/A that the three boys did not allow me to get down and even locked the doors of the car from inside and thereafter Sandeep assured me that nothing will happen and 224 of 235 225 FIR No. 63/06 PS - Kanjhawala he will certain drop me at my house. (Confronted with statement Ex. PW4/A where it is not so recorded). I had stated in Ex. PW4/A that the farm house where I was taken was of a cousin of accused Manjeet. (Confronted with statement Ex. PW4/A where it is not so recorded). I had not stated in statement Ex. PW4/A that at the farm house when I resisted the attempt of accused persons to make me get down, then accused Deepak showed me a pistol and thereby forcibly took me to a room after lifting me in his lap. I had however stated in Ex. PW4/A that Deepak took me inside the room and bolted it from inside and at that time, accused Sandeep and Manjeet were sitting outside. (Confronted with statement Ex. PW4/A where it is not so recorded). Court observation : (In the examination­in­chief it is mentioned at page 4 in line 12 that at that time Sandeep and Manjeet were sitting inside that earlier also she had stated that they were sitting outside. This thus appears to be a typographical mistake).

I had stated in my statement Ex. PW4/A that inside the room Deepak asked me to take off my clothes and upon which I started raising hue and cry and hearing which cousin brother of Manjeet came over there and he asked Deepak to take me away as I was raising a lot of hue and cry and if his father will come, then he will give up beatings to him. (Confronted with statement Ex. PW4/A where it is not so recorded). I had stated my (in) my statement Ex. PW4/A that upon this when Deepak opened the door of the room then I tired (tried) to run out but accused Manjeet caught hold of me and made me to sit again in the car and that this time, Manjeet was driving the car and Sandeep was sitting on the other seat in the front and Deepak sat alongwith me on the rear seat. (Confronted with statement Ex. PW4/A where it is not so recorded but it is recorded that witness has tried to run away but was forcibly made to sit in the car by Sandeep and Deepak Malik). I do not remember whether I 225 of 235 226 FIR No. 63/06 PS - Kanjhawala stated in statement Ex. PW4/A or not that Deepak pressed my mouth as I was raising a lot of hue and cry. (Confronted with statement Ex. PW4/A where it is not so recorded). I had stated in my statement Ex. PW4/A that when inside the car, Deepak started molesting me, then I was trying to resist his attempts and was trying to hit Deepak and upon (this) Deepak had asked Sandeep to catch hold of my hands and thereafter Deepak took off my jeans and also took off his jeans also. (Confronted with statement Ex. PW4/A where it is not so recorded but it is mentioned that accused Sandeep had caught hold of her hands). I had stated in my statement Ex. PW4/A that during all this time when the car was moving, Deepak took off my underwear and was also giving beatings to me. (Confronted with statement Ex. PW4/A where it is not so recorded). I had stated in my statement Ex. PW4/A that after committing rape upon me Deepak sat on one side of the seat and when I tried to pull down the window pane, then also he was giving beating to me and was also pressing my neck. (Confronted with statement Ex. PW4/A where it is not so recorded). During all this incident though I did not sustain any bruises etc but I did have finger marks of Deepak on my face and neck. I had not shown the said marks to the Doctor at the time of my medical examination.

I had stated my (in) my statement Ex. PW4/A that the old aged persons (person) alongwith the other ladies had requested certain motorcyclists to stop the car of the accused persons and they managed to stop the car by bringing their motorcycles in front of the car of the accused persons. (Confronted with statement Ex. PW4/A where it is not so recorded). I had also stated in my statement Ex. PW4/A that the car of the accused persons could be stopped only after great pursuation and that too when the ladies threw stones on the car and thereafter when the doors of the car were opened then as a result I fell on the road.

226 of 235 227 FIR No. 63/06 PS - Kanjhawala (Confronted with statement Ex. PW4/A where it is not so recorded)."

(Underlined by me) In view of above, they are explainable variations and do not, in any way, adversely affect the case of the prosecution, for the reason that PW4 - prosecutrix has categorically stated that she had informed the Police of what she stated under oath before the Court but why it was not so recorded in her statement Ex. PW4/A recorded by the Investigating Officer PW24 - Inspector Sudesh Dahiya would be a reason best known to the Investigating Officer (IO). Strangely, when PW24 - Inspector Sudesh Dahiya IO was being cross­examined, no such question was put to her as to why she did not completely record the statement of the witness/PW4 - prosecutrix or whether this witness had made such afore­ mentioned statement (with which she was confronted with as reproduced and detailed here­in­above).

In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the 227 of 235 228 FIR No. 63/06 PS - Kanjhawala Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).

Para 20 and 21 of Kuria's Case (Supra) reads as under :­

20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.

21. For instance PW15, in his cross­examination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed 228 of 235 229 FIR No. 63/06 PS - Kanjhawala the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being cross­examined, no such question was put to him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

43. Learned Counsel for accused Sandeep Yadav and Manjeet Singh referred to the cases and are reported as 'Dharmender @ Bindu; Kailash Versus State' 2012 CrLJ 35, 'Krishan Kumar Malik Vs. State of Haryana' AIR (SC) 2877, 'State Vs. Suresh Kumar & Anr.' 2010 LE (Del) 502, 'Hanuman Prasad & Ors. Vs. State of Rajasthan' 2008 (Supp.) AIR (SC) 1107 and 'Rai Sandeep @ Deepu Vs. State of NCT of Delhi' 2012 229 of 235 230 FIR No. 63/06 PS - Kanjhawala (8) SCC 21.

I have carefully gone through the same. With due respect there is no dispute as to what has been held therein but the same are wholly distinguishable in view of the peculiar facts and nature of evidence adduced in the instant case. In case titled Sunil Kumar Vs. State 181 (2011) DLT 528(DB) it was held that "No case can strictly be a precedent in a criminal matter for the reason no two criminal trials would unfold the same story and the same evidence. Thus, a decision cited pertaining to the destination reached at a particular criminal voyage has to be carefully applied, on a principle of law, in a subsequent voyage".

44. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 21/05/2006 from 4:00/4:15 p.m. to 7:00/7:30 p.m., accused Sandeep Yadav, in furtherance of their common intention with accused Manjeet and Deepak Malik kidnapped PW4 - prosecutrix aged around 15 years (to be exact 15 years, 02 months and 10 days) with an intention to seduce 230 of 235 231 FIR No. 63/06 PS - Kanjhawala her to illicit intercourse and accused Deepak Malik committed rape with her without her consent and against her will acting in furtherance of their common intention with accused Sandeep Yadav and Manjeet Singh and also criminally intimidated her with threat to kill her. The offences were committed in the manner that accused Sandeep in furtherance of their common intention with accused Sandeep Yadav and Manjeet Singh, on the false pretext that Bobby (PW16 - Prashant Sharma) is calling her at Nangloi Bus stand, induced PW4 - prosecutrix to come to Nangloi Bus Stand and when she reached at Nangloi Bus Stand, she did not find Bobby (PW16 - Prashant Sharma) present there, on which accused Sandeep Yadav told her that Bobby will meet them at Peera Garhi Chowk as he (Bobby) had got a bit late and told the prosecutrix to sit in a Maruti 800 Car of white colour, No. DL­6CD­6807 (Ex. PW24/5) in which accused Manjeet and Deepak Malik were already sitting and upon seeing them (accused Manjeet and Deepak Malik) she told accused Sandeep that she will not sit in the car as two other boys (accused Manjeet and Deepak Malik) are already sitting there, on which he (accused Sandeep) told her that the said two boys (accused Manjeet and Deepak Malik) will get down on the way to Peera Garhi, so she sat in the 231 of 235 232 FIR No. 63/06 PS - Kanjhawala car, on the rear seat and accused Sandeep sat alongwith her. Car was being driven by accused Manjeet and accused Deepak Malik was sitting on the seat adjacent to it. Upon reaching Peera Garhi Chowk, she told accused Sandeep that Bobby is not present there and that she should now be brought back to her house upon which accused Sandeep stated that they will drop her at her house via the way going through Rani Khera. Despite her insistence that she be dropped over there itself and that she will go to her house of her own but all the three accused did not allow her to get down and even locked the doors of the car from inside and then they took her to a Farm House at Rani Khera belonging to the cousin of accused Manjeet and they took her to a room over there despite her resisting and opposing for not getting down from the car and as to why she was brought over there, then accused Deepak Malik showed her a pistol and thereby forcibly took her to the room inside after lifting her in his lap. Accused Deepak after taking her inside the room locked it from inside and accused Sandeep Yadav and Manjeet were sitting outside. Accused Deepak tried to molest her as he asked her to take off her clothes and during all this she started raising hue and cry shouting loudly, upon which cousin brother of accused Manjeet who was already 232 of 235 233 FIR No. 63/06 PS - Kanjhawala present over there, came and asked accused Deepak Malik to take her away as she was raising a lot of hue and cry and told that if his (cousin of accused Manjeet) father will come then he will give beating to him (cousin of accused Manjeet) upon which when accused Deepak Malik opened the door then she tried to run out then accused Manjeet caught hold her and made her sit again inside the car on the rear seat and accused Deepak Malik sat alongwith her and accused Manjeet drove the car and accused Sandeep Yadav was sitting on the seat adjacent to the driver, accused Deepak pressed her mouth as she was raising a lot of hue and cry. Accused Deepak Malik started molesting her but she was trying to resist his attempts and was trying to hit accused Deepak Malik, on which accused Deepak Malik asked accused Sandeep Yadav to catch hold of her hands and thereafter accused Deepak Malik took off her jeans and accused Deepak Malik also took off his jeans and accused Deepak took off her underwear and he committed sexual intercourse with her against her wishes and consent and during all this time car kept moving and during all this accused Deepak Malik also gave beatings to her. After doing all this wrong act with her accused Deepak Malik sat on one side of the seat and when she tried to pull the window pane then also 233 of 235 234 FIR No. 63/06 PS - Kanjhawala he gave beating to her, accused even pressed her neck and the car was still moving in the area of Rani Khera itself as she was crying and raising a lot of hue and cry then one old aged person saw her and heard her and he (old aged person) alongwith a number of other ladies who were also standing nearby asked some boys who were present there with their motorcycles to save her. The said accused did not stop the car, upon which some motorcyclists went ahead and made the car to stop after they parked their motorcycles on the way of the car after great persuasion only and that too when the ladies threw stones on the car, the doors of the car were opened, as a result she fell down on the road. Accused Deepak and Sandeep were caught hold of by the persons present over there but accused Manjeet fled away from the spot after leaving the car over there. She was taken to the house of the said old aged person by the villagers and after some time Police came over there.

I accordingly hold accused Deepak Malik, Sandeep Yadav and Manjeet Singh guilty for the offences punishable u/s 363/366/34 IPC, u/s 376(2)(g) IPC and u/s 506(II)/34 IPC and convict them thereunder.

234 of 235 235 FIR No. 63/06 PS - Kanjhawala

45. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Deepak Malik, Sandeep Yadav and Manjeet Singh in the commission of the offences u/s 363/366/34 IPC, u/s 376(2)(g) IPC and u/s 506(II)/34 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Deepak Malik, Sandeep Yadav and Manjeet Singh beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Deepak Malik, Sandeep Yadav and Manjeet Singh guilty for the offences punishable u/s 363/366/34 IPC, u/s 376(2)(g) IPC and u/s 506(II)/34 IPC and convict them thereunder. Announced in the open Court (MAHESH CHANDER GUPTA) Additional Sessions Judge th on 09 Day of December, 2014 Special Fast Track Court (N/W District), Rohini, Delhi 235 of 235