State vs . 1. Krish Pal on 22 July, 2014

[Cites 33, Cited by 0]

Delhi District Court

State vs . 1. Krish Pal on 22 July, 2014

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                                                                                     FIR No. 97/05
                                                                                      PS - Bawana



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

SESSIONS CASE NO. :  67/13
Unique ID No.     :   02404R0101562012

State         Vs.                   1.  Krish Pal
                                         S/o Late Sh. Vikram
                                         R/o A87, Karala,
                                         Shiv Vihar, Delhi.

                                    2.  Kamal Das @ Pappu @ Bobi
                                         S/o Sh. Jagdish Babu
                                         R/o V&PO Maharmati,
                                         Ganesh Pur,
                                         PS & Tehsil  Sardhana,
                                         District Meerut, U.P.

                                    3.  Raj Pal
                                         S/o Sh. Charan Singh
                                         R/o C9, Begum Vihar,
                                         Sultan Puri, Delhi.

                                         Permanent Address : 
                                         Village Naharmati,
                                         PS - Sardana,


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                                               District - Meerut, U.P.
                                              (PROCLAIMED OFFENDER)

                                          4.  Virender @ Billu
                                               S/o Sh. Attar Singh 
                                               Village - Saboli, PS - Dauralla
                                               Tehsil - Sardana,
                                               District Meerut, U.P.
                                               (SINCE CONVICTED)

                                          5.  Sunil Kumar
                                               S/o Sh. Dharam Pal
                                               Village - Saboli, PS - Dauralla
                                               Tehsil - Sardana,
                                               District Meerut, U.P.
                                               (SINCE CONVICTED)


FIR No.         :  97/05
Police Station  :  Bawana
Under Sections  :  395/376(2)(g)/412 IPC



Date of committal to session Court        :     05/07/2012

Date on which judgment reserved           :     09/07/2014

Date on which judgment announced :              22/07/2014




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                                                                                                      PS - Bawana



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 19/03/2005, on receipt of DD No. 5A, Inspector Babu Lal in the government vehicle with driver and operator reached at the spot at Sankat Mochan Sidh Hanuman Mandir, Begumpur, Barwala Road, where SI Ajit Singh and Constable Ayub Khan were found present and on inquiry it was revealed that prosecutrix (name withheld being a case u/s 376 IPC) w/o Pandit has been taken to M. B. Hospital, Pooth Khurd by PCR. At the spot, on the left side of the mandir in the corner one broken lock was lying and in the room rear to it, the articles (samaan) were lying scattered. At the spot, Sh. Ram Prasad was present. His statement was recorded which is to effect that, he lives at the above address with his children (baal bachchon sahit) and is doing the priest's work (pandatai ka kaam) in this temple since the year 2003. In the year 2004, near Diwali he had also brought his wife/prosecutrix and his brotherinlaw (saala) Keshav Raj to live with him. About two months back, his wife has given birth to a girl child. Today, in the night at about 3 of 143 4 FIR No. 97/05 PS - Bawana 10:00 p.m. (on 18/03/2005), he slept in the mandir where the murti was installed (murti rakhi thi). His wife/prosecutrix and his brotherinlaw (saala) Keshav Raj aged four years were sleeping in the rear room of the mandir (temple). He had put a lock on the room from outside, in which his wife and brotherinlaw were sleeping, at about 12:45 a.m., in the mandir, fivesix persons by putting their hands from the grill, pulled his choti (a bunch of hair) where he was sleeping. On pulling of his choti, he woke up and on seeing them cried out and they were holding pistol, gun in their hands and had put the pistol, gun on his stomach and chest by putting their hands inside (haath ander kar ke) and told if he cried, then they will shoot him dead (chillaya to goli maar denge). He became silent. They asked where is the fifty thousand galla. He told them that there is no such galla, on hearing this, they broke open the lock by saria, which he had put from inside (andar se laga rakha tha) and after holding and by dragging brought him outside and after tying his hands and legs, put him in a vacant place, on the back of the mandir and then taking the key of the room in which his wife was sleeping which was kept below his pillow, and after opening the room entered into it and from the room, sounds of screaming of his wife and crying of the children were coming.

4 of 143 5 FIR No. 97/05 PS - Bawana Thereafter, for a long time, they remained inside the room (kaafi der tak ye log ghuse rahe) and after coming out from there (room) and after opening his legs and hands, they also put him, his wife and children in the rear/back room and after closing it, they went away (kamre me band kar ke chale gaye). He during that time, asked his wife/prosecutrix, on which she told that those four persons on the point of gun, after getting her clothes removed (kapde utarva kar) turn by turn forcibly committed rape upon his wife and they also forcibly removed the gold earrings from her ears, nose laung from her nose and silver pajeb from her feet and they had also taken three sarees, his kurta dhoti kept in that room with them. One of those persons, was having tied pagri (unme se ek ne pagri bandh rakhi thi). Till the morning (of 19/03/2005), he, his wife and children because of fear remained inside. When the morning set in (subah hone par), he raised voice with force (subah hone par maine jor jor se awaj lagayi). On raising the voice, got stopped one cyclist, who after coming inside, opened the door from outside and after coming out, he (complainant) disclosed all the incident to the nephew of the maalik (owner), who informed the Police. The said persons, by trespassing into the mandir and house, have committed robbery and have committed gang 5 of 143 6 FIR No. 97/05 PS - Bawana rape with his wife and he can identify them. The statement has been heard and is correct. After the registration of the case, the investigation was proceeded with by Inspector Babu Lal. The statements of the witnesses were recorded. Accused Sunil and Virender were arrested and challan against them was filed on 11/07/2005 in the Court and after the conclusion of the trial, the Court sentenced both accused Sunil and Virender. Accused Rajpal and Kamal Das were declared P.O. (Proclaimed Offender), on 08/07/2005, by the Court of Smt. Raj Rani, MM, Tis Hazari Court. On receipt of the secret information by ASI Jai Singh, PS Connaught Place, New Delhi about accused Kamal Das @ Pappu @ Bobi a proclaimed offender, wanted in the present case, at the instance of secret informer, accused Kamal Das @ Pappu @ Bobi, was arrested from his house at Gaon Maharmati, Ganeshpur, PS Sardhna, Distt. Meerut, U.P. u/s 41 (1) Cr.P.C. and the information regarding his arrest vide DD No. 43B dated 20/04/2012 was given to PS Bawana on which SI Randhir Singh was deputed who after obtaining the permission of the Court, interrogated accused Kamal Das and arrested him and recorded his disclosure statement. Statements of witnesses were recorded. Further investigation was handed over to SI Somvir. On 6 of 143 7 FIR No. 97/05 PS - Bawana 05/05/2012, accused Kamal Das was produced in muffled face, before the Court of Sh. Manish Khurana, Learned MM and the application for taking blood sample of accused Kamal Das for obtaining DNA, finger prints was moved before the Court which was allowed and medical examination of accused Kamal Das @ Pappu @ Bobi was got conducted vide MLC No. B1941/12 and after his medical examination the blood sample of accused Kamal Das and the sealed exhibits as handed over by the doctor were taken into police possession and were deposited in the Malkhana and were sent to FSL, Rohini vide RC No. 87/21/12 dated 15/05/2012. During the course of investigation, an application for TIP of accused Kamal Das was moved before the Court of Sh. Manish Khurana, Learned MM. and accused Kamal Das refused to join the TIP Proceedings and the copy of the TIP Proceedings was obtained. As the accused Kamal Das @ Pappu @ Bobi had absconded and had violated the proclamation u/s 82 Cr.P.C. therefore, section 174 A IPC was also added in the case. Accused Rajpal and Krish Pal were evading arrest and after their arrest, the supplementary chargesheet will be filed.

Upon completion of the necessary further investigation supplementary challan for the offences u/s 395/376(2)(g)/412 IPC was 7 of 143 8 FIR No. 97/05 PS - Bawana prepared against accused Kamal Das @ Pappu @ Bobi and was sent to the Court for trial.

2. During the course of further investigation, accused Krish Pal was arrested and after completion of the necessary further investigation, supplementary challan for the offences u/s 395/376(2)

(g)/412 IPC was prepared against accused Krish Pal and was sent to the court for trial.

3. Since the offences u/s 395/376(2)(g)/412 IPC are 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 u/s 209 Cr.P.C. against accused Krish Pal and Kamal Das @ Pappu @ Bobi.

4. Upon committal of the case against accused Krish Pal and accused Kamal Das @ Pappu @ Bobi to the Court of Session, after hearing on charge prima facie a case u/s 395/376(2)(g) IPC against accused Krish Pal and accused Kamal Das @ Pappu @ Bobi and a case 8 of 143 9 FIR No. 97/05 PS - Bawana u/s 397 IPC against accused Krish Pal was made out. Charges were framed accordingly which were read over and explained to both the said accused to which they pleaded not guilty and claimed trial.

5. It is to be mentioned that the trial against accused Virender @ Billu and Sunil Kumar has since been concluded and case against them has since been disposed off vide judgment dated 14/01/2011 and order on sentence dated 17/01/2011 by the Learned Predecessor Court and the appeal filed by the said convicts is pending disposal before the Hon'ble Delhi High Court. However, the scanned copy, of the judicial file pertaining to convicts Virender @ Billu and Sunil Kumar which was called for from the Hon'ble Delhi High Court, alongwith the exhibits was retained by the Learned Predecessor vide order dated 04/10/2012 to which the Learned Defence Counsel had 'no objection'.

6. In support of its case against accused Krish Pal and accused Kamal Das @ Pappu @ Bobi prosecution has produced and examined 33 9 of 143 10 FIR No. 97/05 PS - Bawana witnesses namely PW1 HC Rajeev, PW2 ASI Asha Devi, PW3 Ram Prasad Adhikari, Priest Sankat Mochan, Sidh Hanuman Mandir, PW4 Dr. N. S. Khurana, MO, M. B. Hospital, Pooth Khurd, Delhi, PW7 - Prosecutrix, PW8 W/Constable Neetu, PW9 Mandip Singh, PW10 Constable Dalbir Singh, PW10A Satbir Singh, PW11 Insp. Satya Prakash, PW13 Sh. A. K. Srivastava, Dy. Director, FSL, Rohini, Delhi, PW17 - Yogender, PW19 Retd. Constable Japan Singh, PW20 Constable Shambhu, PW21 ASI Mahender Singh, PW23 HC Azad Singh, PW24 HC Rajender Singh, PW26 HC Babu Ram, PW29 ACP Babu Lal, PW31 Constable Dharmender (Affidavit also), PW32 Constable Ranvir Singh (affidavit also), PW33 Constable Brahm Pal (affidavit also), PW34 Constable Krishan (2 affidavits also), PW35 Constable Dharam Pal (2 affidavit also), PW36 ASI Jai Singh (affidavit also), PW37 HC Inder Singh (affidavit also), PW38 HC Ram Narayan (affidavit also), PW39 Dr. N. K. Singh, CMO, Dr. BSA Hospital, PW40 Dr. K. Kiran, CMO, Dr. BSA Hospital, PW41 Dr. Saroj Aggarwal, Specialist & Incharge Deptt. of OBS & Gynae, MB Hospital, Delhi, PW42 HC Parveen Kumar, PW43 SI Anwar Khan, PW44 SI Somveer Singh and PW45 SI Randhir Singh.

10 of 143 11 FIR No. 97/05 PS - Bawana No witnesses as PW5, PW6, PW12, PW14, PW15, PW16, PW18, PW25, PW27 have been examined in this case and PW22 Vivek Tripathi, Lab. Technician, Kristal MRI and PW28 HC Suraj Bhan have been dropped by the Learned Predecessor Court.

7. In brief the witnessography of the prosecution witnesses is as under : PW1 HC Rajeev who deposed that on 13/04/2005, he was working as Duty officer at PS Alipur from 04:00 p.m. to 12:00 night. On that day, he received a rukka which was sent by HC Azad Singh through Constable Ved Prakash. On the basis of that rukka he registered FIR No. 135/05 u/s 25/54/59 Arms Act which is in his handwriting. He has brought the original FIR with him and it is written and signed by him. The carbon copy of the FIR is already Ex. PW1/A bearing his signature at point 'A' (OSR). After registration of the case, he handed over the original rukka and carbon copy of the FIR to Constable Ved Prakash. On that day he has also received a rukka which was sent by HC Rajender Singh through Constable Suraj Bhan. On the basis of that 11 of 143 12 FIR No. 97/05 PS - Bawana rukka he registered FIR No. 136/05 which is also in his handwriting. He has brought the original FIR with him. The carbon copy of the FIR is already Ex. PW1/B bearing his signature at point 'A' (OSR). After registration of the case he handed over the original rukka and carbon copy of the FIR to Constable Suraj Bhan.

PW2 ASI Asha Devi who deposed that on 19/03/2005, she was posted at PS Bawana and was working as Duty Officer from 08:00 a.m. to 4:00 p.m. On that day, she received one rukka at 11:25 a.m. which was brought by Constable Ayub Khan which was sent by Inspector Babu Lal. On the basis of that rukka she registered FIR No. 97/05 u/s 395/376(2)(g) IPC. She has brought the original FIR with her. It is written by her and signed by her. The carbon copy of the FIR is already Ex. PW2/A in the main file bearing her signature at point 'A' (Original FIR seen and returned). After registration of the case, the original rukka and carbon copy of the FIR handed over to Constable Ayub Khan to be delivered to Inspector Babu Lal for further investigations. She recorded DD No. 9A regarding registration of the case. Special report of the case was sent to Learned Metropolitan Magistrate and Senior Police Officers 12 of 143 13 FIR No. 97/05 PS - Bawana through Constable Vijay Kumar, Motorcycle rider. Information about the incident was received at Police Station at 8:25 a.m. and she recorded that information in DD No. 5A, copy of the same is already Ex. PW2/B in the main file. Photocopy of the DD No. 9A is already Ex. PW2/C in the main file.

PW3 Ram Prasad Adhikari, Priest Sankat Mochan, Sidh Hanuman Mandir who is the husband of the prosecutrix and deposed regarding the incident took place with him as well as about the incident disclosed to him by his wife/prosecutrix and his brotherinlaw and proved his statement made to the Police Ex. PW3/A, proved the pointing out memos of the place of incident by accused Virender @ Billu and Sunil (since convicted) Ex. PW3/B and Ex. PW3/C respectively and also identified printed cloth wrapped by one of the assailants at the time of incident Ex. P1, saree Ex. P2, plastic sheet and one cover of quilt Ex. P3 and P4 respectively, bed sheet Ex. P5 (Bed sheet Ex. P5 is also exhibited as Ex. P7 in the evidence of PW7 - prosecutrix). He correctly identified the accused Kamal Das and Krish Pal and also deposed on the investigational aspects which he joined.

13 of 143 14 FIR No. 97/05 PS - Bawana PW4 Dr. N. S. Khurana, MO, M. B. Hospital, Pooth Khurd, Delhi who deposed that he has been instructed to depose on behalf of Dr. Jay Kumar who is no longer working at M. B. Hospital being acquainted with his handwriting and signature. Dr. Jay Kumar had earlier deposed in this case on 19/05/2007. As per the record on 19/03/2005, prosecutrix (name withheld) W/o Ram Prashad, 22 years female was brought to the Hospital at 10:15 a.m. by PCR Van InCharge HC Harbir Singh with alleged H/o sexual assault, as told by the patient on the night of 18/03/2005. There was no history of loss of consciousness, vomiting or seizures. Local examination found no visible external injuries. Dr. Jay Kumar prepared MLC already Ex. PW4/A. It is in his (Dr. Jay Kumar) handwriting and bears his (Dr. Jay Kumar) signature at point 'A'. The patient was referred to Gynae Emergency for detailed examination and expert opinion and further management.

PW7 prosecutrix is the victim who deposed regarding the incident and proved a printed cloth Ex. P1, saree Ex. P2, plastic sheet Ex. P3, cover of quilt Ex. P4, ear ring Ex. P5, lock Ex. P6 and a bed sheet 14 of 143 15 FIR No. 97/05 PS - Bawana Ex. P7 (Bed sheet Ex. P7 is also exhibited as Ex. P5 in the evidence of PW3 - Ram Prasad Adhikari) and deposed regarding the investigational aspects which she joined.

PW8 W/Constable Neetu who deposed that on 19/03/2005, she was posted at Police Control Room, Head Quarter. On that day, she received a telephonic call regarding rape and beating in a Mandir. She filled up the Form 1 of the Police Control Room and informed the concerned PS - Bawana. She has not brought the original Form 1, however the photocopy of the same is Ex. PW8/A. PW9 Mandip Singh who deposed that he is the owner of Sankat Mochan Hanuman Mandir, Barwala, Begum Pur Road, Delhi and Ram Prasad Tewari was appointed by his wife as a Pujari of the Mandir since, 2003. But he could not tell the exact date. Ram Prasad Tiwari used to reside in the room in the Mandir/Temple alongwith his family comprising of his wife and baby daughter and one brotherinlaw aged about 45 years at that time. At about 7:00 - 8:00 a.m. on 19/03/2005 Jogender son of his sisterinlaw informed him on telephone that a 15 of 143 16 FIR No. 97/05 PS - Bawana dacoity has taken place in the Mandir. He (PW9) told him (Jogender) that he (PW9) was on duty and he came back thereafter. At about 2:00 - 3:00 p.m., he returned from his duties and went to the Mandir nobody was found in the Mandir but he found locks broken and the articles/good were lying scattered. Some public persons were there in the Temple and he asked them about the Panditji and they informed him that Police had taken him to MB Hospital. Thereafter, he went to MB Hospital where he met Pujari/Panditji and his wife admitted in the Hospital. After meeting them there, he returned to the Temple alongwith Panditji and Panditji gave him the details of the incident. The Police also came to the spot and took into possession plastic sheet, clothes, quilt covers, bed sheet, one gadda, sealed the same with the seal of 'BL' and same were taken into possession vide seizure memo Ex. PW9/A and bears his signature at point 'A'. His statement was recorded by the Investigating Officer on 23/03/2005. He identified the case property i.e. one plastic sheet and cover of quilt as Ex. P3 and P4 respectively.

PW10 Constable Dalbir Singh who deposed that on 19/03/2005, SHO PS - Bawana called the Crime Team at the spot i.e. 16 of 143 17 FIR No. 97/05 PS - Bawana Sankat Mochan Hanuman Mandir, Begum Pur, Barwara Road. He alongwith Incharge Crime Team, SI Satya Parkash reached there & on the instructions of the IO, he took the photographs from different angles. He has brought the negatives of the same. Photographs are already Ex. PX1 to PX7. His statement was recorded by the IO.

PW10A Satbir Singh who deposed that his brotherin law/behnoi Mandeep is the owner of Sankat Mochan Sidh Hanuman Mandir, Barwala, Begum Pur Road, Delhi. Sh. Ram Prasad Adhikari was appointed as a Pujari in the abovesaid Temple and he used to reside in the Temple premises in a room alongwith his wife/prosecutrix (name withheld) and one newly born daughter and two other children one of which was the brotherinlaw of Ram Prasad aged about 57 years. On 19/03/2005 at about 7:00 - 8:00 a.m. Ram Prasad Adhikari came to his house and first he told his nephew Yogender that four five persons forcibly entered in the Temple and they committed rape on his wife, in the intervening night of 1819/03/2005 and also committed robbery of jewelry (jewellery) and cash lying in the Temple including the ear rings of his wife. He was at the fields at that time and his nephew informed 17 of 143 18 FIR No. 97/05 PS - Bawana him about this at about 9:00 a.m. and by that time Yogender had already informed Mandeep and Police. On coming to know of the incident, he immediately reached the Temple. Mandeep told them that he would reach in the evening as he was away for his duty and had told Yogender to inform the Police. The PCR Officials came to the spot/Temple and shifted Ram Prasad Adhikari and his wife to MB Hospital, Pooth Kalan. SHO Inspector Babu Lal also came there and after coming to know of the incident asked him (PW10A) for the keys of the Temple room. Panditji had given him the keys of the room, while going to the Hospital and therefore on the instructions of the SHO he opened the lock of the room. Plastic sheet and cover of quilt were kept in a pullinda and same were sealed with the seal of 'BL' and same were taken into possession vide seizure memo already Ex. PW9/A bears his signature at point 'B'. SHO Babu Lal recorded his statement. He identified plastic sheet and cover of quilt Ex. P3 and Ex. P4 respectively.

PW11 Inspector Satya Prakash who deposed that on 19/03/2005, he was working as Incharge Crime Team NorthWest District. On receipt of information from Duty Officer, PS - Bawana, he 18 of 143 19 FIR No. 97/05 PS - Bawana reached the spot near Sankat Mochan Hanuman Mandir, Begum Pur, Barwala Road at about 10:00 a.m. There, SHO PS - Bawana was also present. There he prepared the Crime Team report which is already Ex. PW11/A, signed by him at point 'A'. Photographer Constable Dalbir Singh had taken the photographs.

PW13 Sh. A. K. Srivastava, Dy. Director, FSL, Rohini, Delhi who deposed that on 08/09/2008, he was examined before the Court and he examined the exhibits and his detailed reports are already Ex. PW13/A to Ex. PW13/R. On 29/09/2012, one cloth parcel with seal of 'SD' containing Ex. 1 i.e. a piece of gauze cloth having dark brown stains described as blood sample of accused vide MLC No. 677/12 on sterlized gauze piece vide FSL No. 2012/DNA/2100. On 15/05/2012 vide FSL No. 2012/DNA/3314 one paper box sealed with the seal of 'SD' containing Ex. 1 which were internally marked as Ex. 2 in DNA Unit. The exhibit was a piece of gauze cloth having dark brown stains described as blood sample of accused vide MLC No. 1941/12 dated 05/05/2012. Now the source of Ex. 1 and Ex. 2 were subjected to DNA isolation. DNA was isolated from the source of Ex. 1 and 2. the DNA 19 of 143 20 FIR No. 97/05 PS - Bawana profile was generated from Ex. 1 and Ex. 2 using amplified STR identifiler PCR amplification. Data was analysed by using gene mapper IDX software. On conclusion it was found that the DNA profiling (STR analysis) proformed on the Exhibits 1 & 2 is sufficient to conclude that DNA profile of the source of Ex. 1 i.e. blood sample of accused vide MLC No. 677/12 vide FSL 2012/DNA/2100 and DNA profile of source of Ex. 2 (blood sample of accused vide MLC No. 1941/12 vide FSL No. 2012/DNA/3314) are not similar which the DNA profile from the source of Ex. 2B (area 1 and area 2 on salwar of victim/prosecutrix (name withheld)) and Ex. 4B (microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA/07/05 on 31/05/2005. His detailed report in this regard is Ex. PW13/S and Genotype analysis report is Ex. PW13/T both bearing his signatures at point 'A'.

PW17 - Yogender who deposed that on 19/03/2005, he was residing at village and Post Office Barwala alongwith his maternal uncle namely Rajpal alongwith his wife and children. On that day Pandit Ram Parshad came to their house at about 7:45 - 8:00 a.m. and informed that robbers/daicoits had come to the temple & committed robbery of articles 20 of 143 21 FIR No. 97/05 PS - Bawana and had also raped his wife. That Mandir belonged to his Mausa & he immediately telephoned to his Mausa about the incident & thereafter on his asking he telephoned to the Police at 100 number. Thereafter, he alongwith Panditji reached the Temple and found that the lock of the Temple was broken and the articles laying in the room inside the Mandir lying sacked, In the meanwhile Police officials of PCR and local Police also reached there and recorded his statement.

PW19 Retd. Constable Japan Singh who deposed that on 24/03/2005, he was posted as Constable at PS - Bawana. On the directions of IO, he took one sealed pullinda sealed with the seal of 'BL' from MHC(M) vide RC No. 41/21/05 and deposited the same with FSL, Rohini. He took an acknowledgment on a copy of RC from FSL. He came back to PS and gave acknowledged copy to MHC(M). So long as the case property remained in his possession no one tampered the same.

PW20 Constable Shambhu who deposed that on 22/03/2005, he took four pullindas and one sample seal from MHC(M) vide RC No. 40/21/05 to deposit the same with FSL. Out of the above 21 of 143 22 FIR No. 97/05 PS - Bawana four pullindas, one was having the seal of 'BL' and other three were having the seal of Casualty, MB Hospital. The sample seal was also of Casualty, MB Hospital. He deposited the above pullindas and sample seal in FSL and took an acknowledgment on a copy of RC. He came back to PS and gave acknowledged copy of RC to MHC(M). So long as the case property remained in his possession no one tampered the same.

PW21 ASI Mahender Singh who deposed that on 19/03/2005, he was posted as MHC(M), PS - Bawana, when Inspector Babu Lal, SHO deposited with him five pullindas, one sample seal and one lock. Out of these five pullindas, three were having the seal of Casualty, MB Hospital and remaining two pullindas were having the seal of 'BL'. The sample seal was of Casualty, MB Hospital. He entered all the articles in Register No. 19 at Serial No. 87, copy of the same is already Ex. PW21/A (OSR). On 22/03/2005 vide RC No. 40/21/05, Constable Shambhu took four sealed pullindas and one sample seal from him to deposit the same to FSL. He (PW21) made entry at point 'X' on already Ex. PW21/A. Copy of RC No. 40/21/05 is already Ex. PW21/B (OSR). Copy of acknowledgment of FSL is already Ex. PW21/C. The 22 of 143 23 FIR No. 97/05 PS - Bawana details of pullindas and sample seal are mentioned in already Ex. PW21/B. These four pullindas and one sample seal were sent to FSL vide RC No. 40/21/05 and as such, he had written five pullindas at point 'X' on already Ex. PW21/A. On 23/03/2005, SHO Babu Lal deposited with him one sealed pullinda sealed with the seal of 'BL'. He made relevant entry at Serial No. 94, copy already Ex. PW21/D. On 24/03/2005, one sealed pullinda sealed with the seal of 'BL' was collected from him by Constable Japan Singh vide RC No. 41/21/05 to deposit the same in FSL. Copy of RC No. 41/21/05 is Ex. PW21/D1. Constable Japan Singh back to the Malkhana after he had deposited the sealed pullinda and had given him (PW21) an acknowledged copy of RC. The said acknowledged copy is already Ex. PW21/D2. I did not make any entry of sending of this sealed pullinda to FSL through Constable Japan Singh in Register No. 19. On 21/04/2005, Inspector Gurmeet Singh deposited with him, three pullindas sealed with the seal of 'GS'. He made relevant entry at Serial No. 143, copy already Ex. PW21/F. Out of these three pullindas, one pullinda sealed with the seal of 'GS' was collected from him by ASI Karan Singh vide RC No. 65/21/05 to deposit the same with FSL, Rohini. He made relevant entry at point 'X1' in 23 of 143 24 FIR No. 97/05 PS - Bawana Register No. 19 on already Ex. PW21/E. Copy of RC No. 65/21/05 is already Ex. PW21/E1. ASI Karan Singh came back to Malkhana and gave him an acknowledged copy of RC having acknowledgment from FSL. The said acknowledged copy of RC is already Ex. PW21/E2. On 23/04/2005, ASI Karan Singh of PS - Alipur deposited with him, one sealed pullinda sealed with the seal of 'RS' vide RC No. 46/21/05 of PS - Alipur. He made relevant entry at Serial No. 148, copy already Ex. PW21/F. On 09/05/2005 vide RC No. 71/21/05, three sealed pullindas were collected from him by HC Babu Ram and took the same to Tis Hazari Court for TIP. Out of these three pullindas, two were having the seal of 'GS' and one was having the seal of 'RS'. Copy of the RC is already Ex. PW21/G. He made relevant entry in Register No. 19 at point 'Y' on already Ex. PW21/E signed by him at point 'Z1'. On the same day, i.e. on 09/05/2005, the above said three pullindas were brought back by HC Babu Ram and deposited the same with him in Malkhana. At that time, those three pullindas were having the seal of the Court. He made relevant entry at point 'Y1' on Ex. PW21/E signed by him at point 'Z2'. On 13/06/2005, Constable Rattan Singh deposited with him one sealed envelope sealed with the seal of FSL containing FSL result sent by 24 of 143 25 FIR No. 97/05 PS - Bawana Gurmeet Singh. He made relevant entries at Serial No. 'XA' on Ex. PW21/A. On 13/06/2005 itself Constable Chokar Ram deposited with him pullindas all sealed with the seal of FSL. He made the relevant entry at point 'XB' on Ex. PW21/D. PW22 Vivek Tripathi, Lab. Technician, NASA Pathology, Sector 8, Rohini, Delhi who was dropped on the request of the IO being irrelevant qua the accused Kamal Das and accused Krish Pal.

PW23 HC Azad Singh (recalled after the arrest of PO accused Kamal Das and Krish Pal) who deposed that on 13/04/2005 he was posted at PS - Alipur. On that day, on receipt of DD No. 598, he reached Palla Mor, GTK Road where Constable Ved Prakash met him and he had apprehended accused Sunil (since convicted) present in the Court (correctly identified). He (Constable Ved Prakash) produced accused Sunil (since convicted) before him and one buttondar knife stating the same to be recovered from the accused. He got FIR No. 135/05 u/s 25 Arms Act registered at PS - Alipur by sending rukka.

25 of 143 26 FIR No. 97/05 PS - Bawana Accused Sunil (since convicted) made disclosure statement on 14/04/2005 about his involvement in the present case. Carbon copy of the same is already Ex. PW23/A which bears his (PW23) signature at point 'A'. He disclosed that he could get one saree recovered from his house i.e. Jhuggi from Rohini. He (PW23) made inquiries from PS - Bawana and information was sent to PP - Shakti Vihar about the arrest and the disclosure statement of accused. Inspector Gurmeet Singh alongwith HC Babu Lal came to PS - Alipur and met him there. He (PW23) handed over the carbon copy of disclosure statement to Inspector Gurmeet Singh and after making inquiries from the accused, Inspector Gurmeet Singh arrested him in the present case. IO recorded his (PW23) statement in this case.

PW24 HC Rajender Singh who deposed that on 13/04/2005, he was posted at PS - Alipur. On that day, Constable Suraj Bhan informed the Duty Officer that he alongwith Constable Ved Prakash apprehended the two accused persons with the knife at Palla More, near Bus Stand, Pulia, Old G. T. Road. Thereafter, Constable Suraj Bhan produced accused Virender @ Billu (since convicted) to him 26 of 143 27 FIR No. 97/05 PS - Bawana and he also produced the buttondar knife and Constable Suraj Bhan told me that knife was recovered from the accused Virender @ Billu (since convicted). Constable Ved Prakash has produced the accused Sunil (since convicted) to HC Azad Singh and he also produced the knife and he said that knife was recovered from the possession of accused Sunil (since convicted). Thereafter, HC Azad Singh started to conduct the proceeding against accused Sunil (since convicted) and he opened the knife with the help of button. He prepared the sketch of the knife and the knife was measured. There he got registered the case vide FIR No. 136/05. Accused Virender (since convicted) was arrested by him and accused made a disclosure statement regarding involvement in case FIR No. 97/05. the disclosure statement of accused Virender @ Billu (since convicted) is marked as Mark PW26/A, which bears his signature at point 'A'. Thereafter, accused led them to his Jhuggi i.e. Jhuggi No. 37, near Jaipur Golden Hospital. Accused pointed out his Jhuggi and accused got recovered one ear ring from Jhuggi and same were kept in a pullinda and sealed with the seal of 'RS' and he prepared the pointing out of seizure memo already Ex. PW26/A, which bears his signature at point 'A'. There he had inquired the facts about the case from PS -

27 of 143 28 FIR No. 97/05 PS - Bawana Bawana and came to know that Inspector Gurmeet is the IO of case FIR No. 97/05, under Section 395/376(2)(g) IPC. Inspector Gurmeet came to PS - Alipur and he (PW24) handed over the copy of disclosure statement and point out memo and seizure memo of ear ring to Inspector Gurmeet. Inspector Gurmeet recorded his statement and also recorded the statement of HC Azad Singh. He also recorded the statement of Constable Suraj Bhan. He took the accused persons to BJRM Hospital for their medical examination and he obtained the MLCs of the accused persons. Thereafter, he took the accused to Tis Hazari Courts and accused persons were produced before the concerned Court and accused persons were sent to JC. They came back to the PS - Alipur. Case property was deposited in the Malkhana. He also identified one ear ring as the same was got recovered from the accused Virender @ Billu (since convicted) and same is Ex. P5.

PW26 HC Babu Ram who deposed that on 14/04/2005, he was posted as Head Constable at Operational Cell, NorthWest District. On that day, on receiving DD No. 9, he alongwith Inspector Gurmeet Singh, ASI Karan Singh and a driver in a Government vehicle TATA 407 28 of 143 29 FIR No. 97/05 PS - Bawana visited PS - Alipur. There they met HC Azad Singh and HC Rajender Singh met them alongwith accused Virender @ Billu and Sunil Kumar (since convicted). Both accused were arrested by them in FIR No. 135/05 and 136/05, PS - Alipur. The accused were in muffled face. Inspector Gurmeet Singh made inquiries from HC Rajender Singh and HC Azad Singh. HC Rajender Singh and Azad Singh handed over photocopies of documents of their case to IO Inspector Gurmeet Singh. Thereafter, IO made inquiries from both the accused persons. Thereafter, both accused persons were arrested in the present case. IO prepared arrest memo of accused Sunil Kumar (since convicted), he (PW26) signed the same at point 'A' and the same is already Ex. PW26/A. He also signed personal search memo of accused Sunil Kumar (since convicted), which bears his signature at point 'A' and the same is already Ex. PW26/B. IO prepared arrest memo of accused Virender @ Billu (since convicted), he signed the same at point 'A' and the same is already Ex. PW26/C. He also signed personal search memo of accused Virender @ Billu (since convicted), which bears his (PW26) signature at point 'A' and the same is already Ex. PW26/D. Thereafter, both the accused were taken to BJRM Hospital for medical and thereafter, they 29 of 143 30 FIR No. 97/05 PS - Bawana are produced before the Concerned Court. On 20/04/2005, he again joined the investigation alongwith IO Inspector Gurmeet Singh, ASI Karan Singh and a driver in Government vehicle Tata 407 went to Tis Hazari Court for seeking Police remand of accused persons. Accused persons were granted two days Police remand. From the Court, they went for medical examination of both the accused persons. Thereafter, they went to Operational Cell Office. IO conducted further inquiry from the accused persons. IO recorded separate disclosure statement of both the accused persons. He signed both the separate disclosure statement. Disclosure statement of accused Virender @ Billu (since convicted) bears his signature at point 'A' and the same is Ex. PW26/E. Disclosure statement of accused Sunil Kumar (since convicted) bears his signature at point 'A' and the same is Ex. PW26/F. IO recorded his statement. Thereafter, accused persons were sent to lockup. On 21/04/2005, he again joined the investigation alongwith IO Inspector Gurmeet Singh, ASI Karan Singh, ASI Rajbir Singh and a driver in a Government vehicle Tata, the accused persons were taken from lockup, Saraswati Vihar and their medical was done at BSA Hospital. As per disclosure statement of accused Sunil (since convicted), they went to Jhuggi No. 26 near Jaipur 30 of 143 31 FIR No. 97/05 PS - Bawana Golden Hospital. Accused Sunil (since convicted) pointed out his Jhuggi. Accused went inside the Jhuggi and took out a saree, which was hanging at the wall of the Jhuggi and produced before the IO. The colour of the saree was brownish (badami) colour, it was of silk. The saree was having design of puzzled lines. The border was having red lines and leaves and flowers of coca cola the saree was old and burnt having two spots. The saree was sealed in a white cloth pullinda and sealed with the seal of 'GS'. The accused had also produced a cloth, which he used at the time of incident. Accused had taken out this cloth from a corner of the Jhuggi. The cloth was of light white colour and black colour. The cloth is having length about 2.5 meters. This cloth is also sealed in a cloth pullinda and sealed with the seal of 'GS'. The seal after use was handed over to him. IO prepared pointing out memo and seizure. The pointing out memo of cloth is signed by him at point 'A' and the same is Ex. PW26/G. He signed seizure memo of saree at point 'A' and the same is Ex. PW26/G. He also signed the seizure memo of cloth at point 'A' and the same is Ex. PW26/H. IO asked 45 public persons to join the proceedings, they did not agree. Thereafter, alongwith the seizure properties, they went to FSL, Rohini. There, blood 31 of 143 32 FIR No. 97/05 PS - Bawana samples of both the accused persons were taken by one Srivastava for blood test. Lab. Drechnician (Technician) Vivek had taken the blood samples. Thereafter, they went to the house of the complainant. There they met Ram Prakash Adhikari and his wife/prosecutrix (name withheld) produced one bedsheet before IO having light yellow colour. It was embroided by white and black thread. This bed sheet was on the bed on the day of incident. She further stated it was washed on 20/04/2005. This bed sheet also seized in a cloth pullinda and sealed with the seal of 'GS'. The seal was taken from him for sealing it. IO prepared seizure memo of the bed sheet, which he had signed at point 'A' and seizure memo is Ex. PW26/I. The facts stated by prosecutrix (name withheld) was in Nepali language, which was translated by complainant, her husband to them. IO recorded statement of prosecutrix (name withheld). Both were brought near the vehicle. Complainant Ram Prakash identified both the accused persons but prosecutrix (name withheld) identified accused Virender @ Billu (since convicted) only. Prior to this, IO also recorded statement of one Joginder, resident of Barwala Village. Thereafter, they went to Hanuman Mandir i.e. the spot of crime. Both accused persons identified the spot of crime. IO prepared separate 32 of 143 33 FIR No. 97/05 PS - Bawana pointing out memo, which bears his signature at point 'B', same are already exhibited as Ex. PW3/B and Ex. PW3/C. Thereafter, IO recorded the statement of complainant Ram Prakash Adhikari. Thereafter, they went to PS - Bawana. The case property was deposited in Malkhana and they returned to Operational Cell. He also identified one bed sheet Ex. P3 (Also as Ex. P7 in the evidence of PW7 Prosecutrix), cloth Ex. P1 and saree of brownish colour (badami) Ex. P2 and deposed that IO recorded his statements on 14/04/2005, 20/04/2005 and 21/04/2005.

PW28 - HC Suraj Bhan, was dropped on the request of the Learned Addl. PP for the State being not relevant qua the accused Krish Pal and Kamal Das.

PW29 ACP Babu Lal is the initial investigating officer (IO) of the case who deposed that on 19/03/2005, he was posted as SHO PS - Bawana. On that day, DD No. 5A was recorded at PS and it was marked to SI Ajit Singh, who left the PS with Constable Ayub Khan, photocopy of the DD is at point 'X' on already Ex. PW2/B. He also left 33 of 143 34 FIR No. 97/05 PS - Bawana with the staff for the inquiry of the information and they reached at Sankat Mochan Sidh Hanuman Mandir, Begumpur, Barwala Road, near School. ASI Ajit Singh and Constable Ayub were already present there. Complainant Ram Prasad Adhikari was also present there and he came to know that the wife of Ram Prasad Adhikari namely prosecutrix (name withheld) was removed to MB Hospital, Pooth Khurd by PCR. He inspected the scene of crime and found that one broken lock was lying near the temple and in the adjoining room, the household articles were scattered. In the meantime, DCP, ACP, members of the Crime Team and the members of the Crime Women Cell, Nanak Pura also reached there. He recorded the statement of complainant Ram Prasad Adhikari vide already Ex. PW3/A attested by him at point 'B'. He prepared rukka already Ex. PW29/A bearing his signature at point 'A' and handed over to Constable Ayub for registration of the FIR. He left the spot and went to PS. Members of the Crime Team inspected the scene of crime and took the photographs of the scene of crime and they submitted their report vide already Ex. PW11/A. He lifted the broken lock from the spot and taken into possession vide memo already Ex. PW29/B bearing his signature at point 'A'. He also entered into the residential room and 34 of 143 35 FIR No. 97/05 PS - Bawana lifted a button of black colour having four holes and its back was of chitkawara (black and white). The button was turned into a match box and a parcel was prepared with the help of the cloth and sealed with the seal of 'BL'. It was taken into possession vide memo already Ex. PW29/C bearing his signature at point 'A'. He also lifted a shawl of maroon colour having some stains looking like the semen stains. It was also turned into a cloth parcel and sealed with the seal of 'BL' and was taken into possession vide memo already Ex. PW29/D bearing his signature at point 'A'. In the meantime, Constable Ayub returned back at the spot and handed over to him the original rukka and copy of FIR. He directed SI Ajit Singh to reach MB Hospital and he made inquiries at the spot. After which he also reached at MB Hospital and collected the MLC of prosecutrix (name withheld) W/o Ram Prasad. SI Ajit Singh handed over three sealed parcels with sample seal containing the articles seized by the Doctor which he seized vide Ex. PW29/E bearing his signature at point 'A'. He also made inquiries from the prosecutrix (name withheld) in the Hospital. At that time, W/SI Parvati was also present near prosecutrix (name withheld). Since prosecutrix (name withheld) was not well conversant with the language of Hindi and she 35 of 143 36 FIR No. 97/05 PS - Bawana used the Nepali language, hence whatever she told was translated by her husband Ram Prasad and then he (PW29) recorded her statement u/s 161 Cr.P.C. He tried to search for the accused persons. As and when the parcels were seized by him, same were deposited by him with the MHC(M) simultaneously. On 19/03/2005, he also prepared site plan at the instance of Ram Prasad vide already Ex. PW29/F bearing his signature at point 'A'. On 22/03/2005, he sent four sealed parcels with sample seal to FSL through Constable Shambhu for their examination. On 23/03/2005, Director FSL visited the scene of crime and he inspected the scene of crime. He directed him (PW29) to lift one plastic sheet and a quilt cover. He lifted the same and turned the same into a cloth parcel and sealed with the seal of 'BL'. It was taken into possession vide memo already Ex. PW9/A bearing his signature at point 'C'. During the investigation, he recorded the statement of witnesses and he suspected four boys namely Rajbir, Sukhbir, Sanjeev and Sonu. On the directions of Senior officers, all these four boys were taken to FSL alongwith prosecutrix (name withheld) and Ram Prasad for the purpose of DNA examination. Their forms were filled up at FSL vide memo already Ex. PW13/M, PW13/N, PW13/O, PW13/P, PW13/Q and PW13/R all bearing 36 of 143 37 FIR No. 97/05 PS - Bawana his signature at point 'B'. The officials of FSL took the blood samples of the suspects as well the complainant and his wife/prosecutrix (name withheld). He (PW29) tried to search the accused persons but could not traced them, the investigation of this case was transferred to Operation Cell, N/W District and the investigations thereafter conducted by Inspector Gurmeet Singh. As per the record, it was Inspector Gurmeet Singh who had apprehended and arrested the accused Virender @ Billu and accused Sunil Kumar (since convicted) vide proceedings already Ex. PW26/A and already Ex. PE26/C. Their personal search was conducted vide already Ex. PW26/B and already Ex. PW26/D. Inspector Gurmeet Singh also recorded their disclosure statements. Disclosure statement of accused Virender (since convicted) is already Ex. PW26/E and disclosure statement of accused Sunil (since convicted) is already Ex. PW26/F. Thereafter both the accused were produced before the Illaka Magistrate in muffled faces for their Judicial TIP where they refused to participate in the same. (Court observations : The proceedings regarding the apprehension and the arrest and investigations qua the accused Virender and Sunil have already been proved previously and are not relevant qua the present accused Kamal 37 of 143 38 FIR No. 97/05 PS - Bawana Dass and accused Krish Pal and hence on the request of the Learned APP for the State, the witness Gurmeet Singh who was previously examined as PW30 need not be examined again to which the Learned Defence Counsel has 'no objection'.) He also identified one broken lock Ex. PW29/1 (Also as Ex. P6 in the evidence of PW7 - prosecutrix) plastic sheet and quilt cover Ex. P3 and Ex. P4 respectively and one maroon colour shawl Ex. 29/2.

PW31 Constable Dharmender who tendered his examinationinchief by way of affidavit which is Ex. PW31/1 bearing his signature at points 'A' and 'B' and deposed that on 21/08/2011, he was posted at PS - South Rohini and he and Head Constable Ram Narayan No. 456/OD had received a concrete information that Kirsh Pal is PO in this case and after ascertaining from the concerned Court that he is declared PO in this case. On 21/08/2011, accused Krish Pal was arrested u/s 41.1(c) Cr.P.C. by HC Ram Narayan with his help and information was given to PS - Bawana regarding this. After the arrest, he was produced in the concerned Court. IO after ascertaining his name as Krish Pal, arrested him in this case. On 05/04/2012, he alongwith HC 38 of 143 39 FIR No. 97/05 PS - Bawana Ram Narayan joined the investigation in PS - Bawana where IO recorded his statement which is correct. He also proved the arrest memo of accused Krish Pal, which is Ex. PW31/A bearing his signature at point 'A' and personal search of accused Krish Pal, which is Ex. PW31/B bearing his signature at point 'B'.

PW32 Constable Ranvir Singh who tendered his examinationinchief by way of affidavit which is Ex. PW32/1 bearing his signature at points 'A' and 'B' and deposed that on 01/02/2012, he alongwith IO reached to the Court of Sh. Manish Khurana, Learned MM, Rohini Court No. 110 where after seeking permission of interrogation of accused Krish Pal S/o Late Vikram R/o A87, Karala, Delhi, IO had arrested the accused in this case after interrogation on having sufficient evidence against him. On 01/12/2012, IO had prepared his arrest papers and also wrote his confessional statement upon which he (PW32) had signed. Thereafter, he was got remanded to JC and the accused was kept muffled face during his interrogation and till he was produced in the Court. He proved the disclosure statement of accused Krish Pal, which is Ex. PW32/A bearing his signature at point 'A' signature of SI Anwar 39 of 143 40 FIR No. 97/05 PS - Bawana Khan at point 'B' and signature of Krish Pal at point 'C'.

PW33 Constable Brahm Pal who tendered his examinationinchief by way of affidavit which is Ex. PW33/1 bearing his signature at points 'A' and 'B' and deposed that on 14/02/2012, he alongwith IO reached to the Court of Sh, Manish Khurana, Learned MM, Rohini Court where accused Krish Pal S/o Late Vikram R/o A87, Karala, Delhi was produced from the jail on production warrant. On 14/02/2012, IO had sought one day PC remand of the accused and for his medical examination he (PW33) alongwith IO and accused in his custody went to BSA Hospital whereupon on the request of IO, his medical examination was carried out by the Doctor vide MLC No. B677/12 dated 14/02/2012 and after his medical examination his blood sample for DNA on a gauze piece was preserved and sealed with the seal of 'SD' of BSA Hospital. On 14/02/2012, he had handed over the MLC of accused to IO. IO had seized the preserved samples with sample seal of 'SD' through seizure memo and taken them into Police possession. On 14/02/2012, the said accused Krish Pal in Police custody was taken to place of occurrence i.e. Sankat Mochan Hanuman Mandir, Barwala -

40 of 143 41 FIR No. 97/05 PS - Bawana Begum Pur Road and accused himself led to the spot of Temple and also pointed out towards the compound and the room built in there and disclosed that in the year, 2005, he alongwith his other associates had committed dacoity and gang rape on Pandtani in the same room of this compound. IO also prepared the pointing out memo upon which he has made his signature. Thereafter, accused was brought and lodged in PS lockup after serving him meals and IO recorded his statement that day. He proved the seizure memo of exhibits of accused Krish Pal, Ex. PW33/A and the pointing out memo of Temple, compound and room Ex. PW33/B bearing his signatures at point 'A'.

PW34 Constable Krishan who tendered his examination inchief by way of two affidavits which are Ex. PW34/1 and Ex. PW34/2 both bearing his signature at points 'A' and 'B' respectively and deposed that on 29/03/2012, he was posted at PS Bawana as a Constable and that day as per the instructions of the IO, the exhibits of this case i.e. blood sample of accused duly sealed alongwith sample seal of BSA Hospital (SD) were obtained from MHC(M), HC Bharam Pal No. 1694/OD vide RC No. 55/21/12 dated 29/03/2012 and went to FSL, Rohini biology 41 of 143 42 FIR No. 97/05 PS - Bawana division and deposited them there. On 29/03/2012, after depositing the exhibits, the FSL receipt copy No. FSL No. 2012/DNA2100 dated 29/03/2012 and the copy of RC were handed over back to MHC(M). There was no tampering with the exhibits till remained in his custody. IO recorded his statement after coming back from FSL, Rohini which is correct. On 15/05/2012, as per the directions of the IO, MHC(M), HC Dharampal handed over the sealed parcels of exhibits of this case to him vide RC No. 87/21/12 with forwarding letter for depositing the same in FSL, Rohini, Delhi. He (PW34) had properly got deposited the exhibits duly sealed in FSL, Rohini, Delhi and after depositing them, he brought back the copy of RC and FSL receipt no. FSL 2012/DNA/3314, dated 15/05/2012 vide memo no. 3332, dated 15/05/2012 and handed over the same to MHC(M). There was no tampering with the exhibits till these remained in his custody during transit. IO recorded his statement which is correct. He proved the RC No. 87/21/12, copy of which is Ex. PW34/A bearing his signature at point 'A' and acknowledgment of FSL vide receipt no. FSL 2012/DNA/3314, copy of which is Ex PW34/B bearing his signature at point 'A'. He also proved RC No. 55/21/12 dated 29/03/2012, copy of which is Ex. PW34/C bearing his signature at point 42 of 143 43 FIR No. 97/05 PS - Bawana 'A'. He also proved receipt of FSL vide receipt No. 2012/DNA2100 dated 29/03/2012, copy of which is Ex. PW34/D bearing his signature at point 'A' (OSR).

PW35 Constable Dharam Pal who tendered his examinationinchief by way of two affidavits which are Ex. PW35/1 and Ex. PW35/2 both bearing his signature at points 'A' and 'B' respectively and deposed that the exhibits of the case were deposited by the IO in PS

- Malkhana whose entry is made in Register No. 19 at Mud Serial No. 190/12, dated 14/02/2012 in respect of accused Krish Pal. On 29/03/2012, he was posted at PS - Bawana as MHC/(M)/CP and that day as per the instructions of the IO, the exhibits of this case i.e. blood sample of accused on gauze piece duly sealed with seal of 'SD' of BSA Hospital alongwith this sample seal on paper were handed over to Constable Krishan 2183/OD vide RC No. 55/21/12 dated 29/03/2012 who was sent to FSL, Rohini for depositing the same. On 29/03/2012, after depositing the exhibits in FSL, Rohini, receipt copy No. FSL No. 2012/DNA2100 dated 29/03/2012 and the copy of RC were handed over back to him. There was no tampering with the exhibits till these 43 of 143 44 FIR No. 97/05 PS - Bawana remained in his custody. IO recorded his statement which is correct. The exhibits deposited in PS - Malkhana of this case by the IO were entered in Register No. 19 and mud serial No. 386/12 dated 05/05/2012. On 15/05/2012, the IO brought Constable Krishan 2183/OD to malkhana and directed that the exhibits of this case deposited in PS - Malkhana have to be deposited in FSL, Rohini through him and the IO also produced a forwarding letter to him. Upon this the exhibits of this case consisting of one pullinda containing blood sample of accused Kamal Das vide MLC No. 1941/12 dated 05/05/2010 on sterlized gauze piece sealed with the seal of 'SD' of BSA Hospital, sample seal 'SD' of BSA Hospital, Rohini on paper whcih were duly sealed and were handed over to Constable Krishan vide RC No. 87/21/12 with forwarding letter dated 15/05/2012. He was sent to FSL, Rohini for depositing these exhibits. On 15/05/2012, Constable Krishan brought back a copy of RC and receipt letter of FSL after depositing the exhibits and handed over to him which were kept in malkhana. There was no tampering with the exhibits till these remained in his custody/supervision in PS - Malkhana. IO recorded his statement which is correct. He proved the Entry No. 190/12, dated 14/02/2012 in Register No. 19, copy of which is Ex.

44 of 143 45 FIR No. 97/05 PS - Bawana PW35/A. He also proved RC No. 55/21/12 in Register No. 21, copy of which is Ex. PW34/C bearing his signature at point 'B'. He also proved the acknowledgment of FSL vide Receipt No. 2012/DNA/2100, dated 29/03/2012, copy of which is already Ex. PW34/D. He also proved Mud No. 386/12, dated 05/05/2012 in Register No. 19, copy of which is Ex. PW35/B. He also proved RC No. 87/21/12 in Register No. 21, copy of which is already Ex. PW34/A bearing his signature at point 'B'. He also proved the acknowledgment of FSL vide Receipt No. 2012/DNA/3314, copy of which is already Ex. PW34/B. (Original entries and FSL receipt seen and returned.) PW36 ASI Jai Singh who tendered his examinationin chief by way of affidavit which is Ex. PW36/1 bearing his signature at points 'A' and 'B' and deposed that on 19/04/2012, he alongwith HC Inder Singh No. 148/ND reached to Village Mahar Mati, Ganesh Pur, alongwith secret informer with local Police of PS - Sardhana as the accused Kamal Das was declared PO on 08/07/2005 from the Court of Ms. Raj Rani, Learned MM Tis Hazari Courts, Delhi and it was pending trial in the Court of Sh. Manish Khurana, Learned MM, Rohini Courts, 45 of 143 46 FIR No. 97/05 PS - Bawana Delhi and the next date of hearing was 21/04/2012. The said accused was arrested u/s 41.1(c) Cr.P.C. and arrest papers were prepared and his disclosure statement was recorded. Who disclosed that in the month of March of year, 2005 when he was living in Jaipur Golden Hospital Jhuggis with his elder brother, had committed dacoity with his associates namely Virender @ Billu (since convicted), Sunil (since convicted), Rajpal (since PO), Krish Pal in the Sankat Mochan Hanuman Mandir on Begampur Road and had also tied the hands and feets of the Pujari of Temple and committed gang rape with his wife in the adjoining room of Temple compound. In the year 2005, while committing this crime, his friends had provided him arms. Since then, he had been roaming around after leaving that Jhuggi. He further disclosed that he had started living in the village for some time where he was apprehended. He had further confessed that he has four minor daughters who have to be looked after by him. He (PW36) signed on his personal search, arrest memo and disclosure statement. On 20/04/2012, he had informed PS - Bawana by DD No. 43B regarding production of this accused in the Court of Sh. Manish Khurana, MM, he (PW36) had produced this accused through kalandra u/s 41.1(c) Cr.P.C. in the Court of Learned MM and the accused 46 of 143 47 FIR No. 97/05 PS - Bawana was remanded to JC upto 29/04/2012. On 23/04/2012, IO came to PS - Connaught Place and recorded the statement and was read over to him (PW36) and is correct. He proved the arrest memo of accused Kamal Das, which is Ex. PW36/A bearing his signature at point 'A'. He also proved personal search of accused Kamal Das which is Ex. PW36/B bearing his signature at point 'A' and he also proved disclosure statement of the accused Kamal Das, which is Ex. PW36/C bearing his signature at point 'A'.

PW37 HC Inder Singh who tendered his examinationin chief by way of affidavit which is Ex. PW37/1 bearing his signature at points 'A' and 'B' and deposed that on 19/04/2012, he alongwith ASI Jai Singh, 5148D reached to Village Mahar Mati, Ganesh Pur, alongwith secret informer with local Police of PS - Sardhana as the accused Kamal Das was declared PO on 08/07/2005 from the Court of Ms. Raj Rani, Learned MM, Tis Hazari Courts, Delhi and it was pending trial in the Court of Sh. Manish Khurana, MM, Rohini Courts, Delhi and the next date of hearing was 21/04/2012. The said accused was arrested u/s 41.1(c) Cr.P.C. and arrest papers were prepared and his disclosure 47 of 143 48 FIR No. 97/05 PS - Bawana statement was recorded. Who disclosed that in the month of March of year, 2005, when he was living in Jaipur Golden Hospital Jhuggis with his elder brother, had committed dacoity with his associates namely Virender @ Billu (since convicted), Sunil (since convicted), Rajpal (since PO), Krish Pal in the Sankat Mochan Hanuman Mandir on Begampur Road and had also tied the hands and feets of the Pujari of Temple and committed gang rape with his wife in the adjoining room of Temple compound. In the year 2005, while committing this crime, his friends had provided him arms. Since then, he had been roaming around after leaving that Jhuggi. He further disclosed that he had started living in the village for some time where he was apprehended. He had further confessed that he has four minor daughters who have to be looked after by him. He (PW37) signed on his personal search, arrest memo and disclosure statement. On 20/04/2012, ASI Jai Singh had produced the accused in the Court of Sh. Manish Khurana, MM, through kalandra u/s 41.1(c) Cr.P.C. On 23/04/2012, IO came to PS - Connaught Place and recorded the statement and was read over to him (PW37) and is correct. He also proved the arrest memo of accused Kamal Das, which is already Ex. PW36/A bearing his signature at point 'B'. He also proved personal 48 of 143 49 FIR No. 97/05 PS - Bawana search of accused Kamal Das which is already Ex. PW36/B bearing his signature at point 'B' and he also proved disclosure statement of the accused Kamal Das, which is already Ex. PW36/C bearing his signature at point 'B'.

PW38 HC Ram Narayan who tendered his examinationin chief by way of affidavit which is Ex. PW38/1 bearing his signature at points 'A' and 'B' and deposed that on 21/08/2011, he was posted at PS - South Rohini as Head Constable and he alongwith Constable Dharmender No. 803/OD received a concrete information that Krish Pal is PO in this case and after ascertaining from the concerned Court that he is declared PO in this case. On 21/08/2011, accused Krish Pal was arrested u/s 41.1(c) Cr.P.C. and was produced in the concerned Court and IO after ascertaining about the name of Krish Pal in this case, he was arrested in this case by the IO. On 05/04/2012, as per IO's instructions, he (PW38) alongwith Constable Dharmender No. 803/OD had come to PS - Bawana there after enquiry, IO recorded his statement and was read over to him which is correct. He also proved the arrest memo of accused Krish Pal, which is already Ex. PW31/A bearing his signature at point 49 of 143 50 FIR No. 97/05 PS - Bawana 'B'. He also proved personal search of accused Krish Pal which is already Ex. PW31/B bearing his signature at point 'B'.

PW39 Dr. N. K. Singh, CMO, Dr. BSA Hospital, Rohini who deposed that on 14/02/2012 Krish Pal S/o Vikram aged 45 years was brought before him by SI Anwar Khan of PS - Bawana for purposes of blood collection. After collecting the blood on sterlized gauze piece the exhibits was sealed with the seal of the hospital and handed over to the IO. The MLC of Krish Pal in this regard is Ex PW39/A bearing his signature at point 'A'.

PW40 Dr. K. Kiran, CMO, Dr. BSA Hospital, Rohini who deposed that on 14/02/2012 Kamal Das @ Pappu S/o Jagdish Babu aged 38 years was brought before her by SI Somveer of PS - Bawana for purposes of blood collection. After collecting the blood in sterlized gauze piece the exhibits was sealed with the seal of the Hospital and handed over to the IO. The MLC of Kamal Das @ Pappu in this regard is Ex. PW40/A bearing his signature at point 'A'.

50 of 143 51 FIR No. 97/05 PS - Bawana PW41 Dr. Saroj Agarwal, Specialist & Incharge Deptt. of OBS & Gynae, MB Hospital, Delhi who deposed that she has seen MLC already Ex. PW4/A. The Gynae notes on this MLC are already Ex. PW5/A. Court observations : previously proved by Dr. Sunita Seth. These are in the handwriting of Dr. Rashmi. She is conversant with the handwriting and signature of Dr. Rashmi as she has seen her writing and signing during the course of duties at Hospital. Her signatures appears at point 'B'. As per the Gynae notes, patient alleged history of sexual assault last night by few persons. She is para one, live one, delivery two months back. She is lactational amenorrhea. Patient was conscious. General condition was fare (fair). Vitals were stable. Per abdomen soft. No external injury found over cheek, neck, breast or private parts. One scratch mark linear approximately 56 cm, 10 cm above left wrist joint was found. No bleeding PV was found. Episiotomy wound healthy, slight discharge PV present. Per vaginal examination, hymen was found ruptured, uterus normal size, anteverted mobile, fornices free. Two vaginal smear slides taken. Pubic hair taken. Cloth of the victim packed, sealed and handed over to IO. She was advised antibiotics, urine for pregnancy test and report to the Gynae OPD. She can elucidate on 51 of 143 52 FIR No. 97/05 PS - Bawana the medical aspect of this case.

PW42 HC Parveen Kumar who deposed that he has brought the record of previous involvements of the accused Kamal Das S/o Jagdish which is Ex. PW42/A bearing his signature at point 'A'. Apart from the present case, the accused Kamal Das S/o Jagdish is involved in another case bearing FIR No. 257/04, u/s 399/402/34 IPC, PS - Bawana.

PW43 SI Anwar Khan who deposed that on 01/02/2005, he was posted as SI in PS Bawana. On that day, he reached in the Court of Sh. Manish Khurana, Learned MM, Rohini Courts, Delhi as information was received in the PS that Krish who was PO in the present case is running in JC u/s 41.1(c) Cr.P.C. and he will be produced in the Court on that day. Accused Krish Pal was produced in the Court. He interrogated him after taking the permission from the Learned MM. He was arrested vide arrest memo Ex. PW43/A, bearing his (PW43) signature at point 'A'. He made disclosure statement Ex. PW32/A, bearing his (PW43) signature at point 'B'. Accused was kept in muffled face and was sent to 52 of 143 53 FIR No. 97/05 PS - Bawana JC. He (PW43) moved an application for the TIP of accused Krish Pal and the application was adjourned for 13/02/2012. On 13/02/2012, Krish Pal refused to participate in TIP and he (PW43) collected the copy of the same. On the same day, he also moved an application for the production warrant of the accused on 14/02/2012. On 14/02/2012, accused Krish Pal was produced in the Court and one day PC was taken. Accused Krish Pal was medically examined. His blood sample was taken. Thereafter, accused Krish Pal pointed out the place of occurrence i.e. Sankatmochan Hanuman Mandir, near Barwala, Begum Pur Road near school vide pointing out memo already Ex. PW33/B, bearing his signature at point 'B'. The case property was deposited in the Malkhana and accused was sent to Police lock up. On 15/02/2012 accused was produced in the Court and was sent to JC. On 29/03/2012, exhibits were sent to FSL through Constable Krishan and thereafter, he deposited the receipt with MHC(M). He recorded the statement of witnesses and after completing investigation, the supplementary charge sheet against accused Krish Pal, present in the Court (correctly identified) was filed. Later on FSL result was collected and filed in the Court.

53 of 143 54 FIR No. 97/05 PS - Bawana PW44 SI Somveer Singh who deposed that on 30/04/2012, he was posted as SI in PS Bawana. On that day, investigation of the present case was handed over to him. He perused the file and found that accused Kamal Das was arrested in the present case and is in JC. On 05/05/2012, accused Kamal Das was produced in the Court of Sh. Manish Khurana, Learned MM in muffled face. He (PW44) moved an application for taking the blood samples of the accused. Accused Kamal Das was taken to BSA Hospital and his blood sample was taken. He seized the same vide memo Ex. PW44/A, bearing his signature at point 'A'. Accused was sent to JC and case property was deposited in Malkhana. On 15/05/2012, exhibits were sent to FSL through Constable Krishan and thereafter, he deposited the receipt with the MHC(M). He recorded their statements. He moved an application for the judicial TIP of accused Kamal Das and the same was fixed for 19/05/2012. On 19/05/2012, the application was again adjourned for 21/05/2012 and on 21/05/2012, accused refused to participate in the TIP. He (PW44) collected the copy of the TIP proceedings. After completing the investigation, supplementary charge sheet was prepared against accused Kamal Das and filed in the Court. Accused Kamal Das is present in the 54 of 143 55 FIR No. 97/05 PS - Bawana Court today (correctly identified).

PW45 SI Randhir Singh who deposed that on 20/04/2012, he was posted as SI in PS Bawana. On that day, DD No. 43B was recorded in PS Bawana vide which it is informed that accused Kamal Das @ Pappu who was PO in the present case was arrested by ASI Jai Singh as PO. The copy of DD No. 43B is Ex. PW45/A. On 21/04/2012, he came in the Court of Sh. Manish Khurana, Learned MM. Accused Kamal Das @ Pappu @ Bobi was produced in the Court. After obtaining the permission from the Learned MM, he was interrogated and arrested vide arrest memo Ex. PW45/B and he made disclosure statement Ex. PW45/C, bearing his (PW45) signature at point 'A'. He was produced before the Learned MM in muffled face and was sent to JC. He recorded the statement of witnesses. Thereafter, further investigation of the case was handed over to SI Somveer. Accused Kamal Das @ Pappu @ Bobi present in the Court (correctly identified).

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

55 of 143 56 FIR No. 97/05 PS - Bawana

8. It is to be mentioned that on 05/11/2012, accused Krish Pal and Kamal Das @ Pappu @ Bobi made statements before the Learned Predecessor Court wherein, accused Krish Pal and Kamal Das @ Pappu @ Bobi had admitted the Test Identification Parade (TIP) proceedings conducted by the Learned MM. The TIP proceedings of accused Krish Pal were taken out from the duly sealed envelope, the envelope is Ex. PX1. The applications of the IO for conducting the proceedings are Ex. PX2 and PX3. The TIP proceedings of accused Krish Pal is collectively Ex. PX4 (running into two pages). The application of IO for obtaining the copy of the proceeding is Ex. PX5. Accused Krish Pal had stated that he has 'no objection' if Learned MM is not examined in the Court.

The TIP proceedings of accused Kamal Das @ Pappu @ Bobi were taken out from the duly sealed envelope, the envelope is Ex. PX6. The applications of the IO for conducting the proceedings are Ex. PX7. The TIP proceedings of accused Kamal Das @ Pappu 56 of 143 57 FIR No. 97/05 PS - Bawana @ Bobi is collectively Ex. PX8 (running into two pages). The application of IO for obtaining the copy of the proceeding is Ex. PX9. Accused Kamal Das @ Pappu @ Bobi had stated that he has 'no objection' if Learned MM is not examined in the Court.

9. It is to be mentioned that on 05/11/2012, accused Krish Pal and Kamal Das @ Pappu @ Bobi made statements before the Learned Predecessor Court wherein, accused Krish Pal and Kamal Das @ Pappu @ Bobi had admitted the Test Identification Parade (TIP) proceedings of the case property conducted by the Learned MM which are already Ex. PW18/A to Ex. PW18/D. Both the accused had stated that they have no objection if Learned MM is not examined in this regard.

10. Statements of both the accused Krish Pal and Kamal Das @ Pappu @ Bobi were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication and opted to lead defence evidence. Although, accused Krish Pal opted to lead defence evidence but did not 57 of 143 58 FIR No. 97/05 PS - Bawana lead any defence evidence. Accused Kamal Das @ Pappu @ Bobi in his defence examined one defence witness namely DW1 - Sunder Dass S/o Khacheru Singh R/o Meharmati, Ganesh Pur, Sardana, Meerut, U.P. DW1 - Sunder Dass S/o Khacheru Singh R/o Meharmati, Ganesh Pur, Sardana, Meerut, U.P. who deposed that he is working in Khateli as plumber. About 10 years, he was working Mehanmati, Ganesh Pur on a gur making kolhu (gur banane ka kaam karta tha). 7/6 persons were working on the said kohlu with him. Kawal (Kamal) Dass was also working with him and he had worked on the said kohlu with him from September, 2004 to April, 2005. He was residing in Mehanmati, Ganesh Pur during this period.

11. Learned Counsel for accused Kamal Das @ Pappu @ Bobi submitted that accused Kamal Das and Krish Pal were arrested on 21/04/2012 and 01/02/2012 by the Police only on the disclosure statements of accused Virender @ Billu and Sunil Kumar (since convicted). Learned Counsel for accused further submitted that IO has not made any public witness at the time of incident and not recovered 58 of 143 59 FIR No. 97/05 PS - Bawana any goods from the possession of accused Kamal Das while arresting the accused or confirming the victim's story. Learned Counsel for accused further submitted that IO has not even enquired any person in the incidental area. Learned Counsel for accused further submitted that the prosecutrix has given the statement before the Court as per the direction of the Police officials/IO, therefore, the statement given by the prosecutrix is an afterthought and manipulated one and has been given with malafide intention to falsely implicate the accused Kamal Das. Learned Counsel for accused further submitted that no recovery was effected from accused Kamal Das. Learned Counsel for accused further submitted that the medical examination of PW7 - prosecutrix does not prove that the rape was committed upon her. Learned Counsel for accused further submitted that prosecution has failed to prove its case beyond reasonable doubts and prayed for the acquittal of the accused Kamal Das @ Pappu @ Bobi on the charges levelled against him.

12. Learned Counsel for accused Krish Pal submitted that accused are innocent and have been falsely implicated in the case. The testimony of PW3 - Ram Prashad Adhikari and PW7 - prosecutrix 59 of 143 60 FIR No. 97/05 PS - Bawana require cautious scrutiny and analysis of surrounding circumstances as their evidence qua the present accused Krish Pal and Kamal Das was recorded after 07 years of incident. Learned Counsel for accused further submitted that during his testimony PW3 - Ram Prashad Adhikari stated that 1012 men entered into Temple, whereas PW7 - prosecutrix states only 45 persons. Learned Counsel for accused further submitted that conduct of PW3 - Ram Prashad Adhikari, was suspicious after the incident, when in the morning inspite of making call to Police he opted to intimate the Owner of the Temple. Learned Counsel for accused further submitted that DNA report proved in the testimony of PW13 - Dr. A. K. Srivastava is in the favour of the accused. Learned Counsel for accused further submitted that statements of PW3 - Ram Prashad Adhikari and PW7 - prosecutrix are rather vague in nature, it seems they are deposing on tutoring, without giving exact details of incident and role of the accused in it, they simply said that the accused was among assailants. Learned Counsel for accused further submitted that PW7 - prosecutrix in her examinationinchief said that she became unconscious after the incident and regained her consciousness in the Hospital and PW3 - Ram Prashad Adhikari states that his wife was unconscious when 60 of 143 61 FIR No. 97/05 PS - Bawana she was taken to Hospital and she gained her consciousness after one or two days, whereas, MLC of PW7 - prosecutrix shows that she was conscious and oriented when she was brought to the Hospital. This fact itself diminishes their credibility. Learned Counsel for accused further submitted that the testimony of PW10 - Constable Dalbir Singh brings new fact on record which was not stated by PW3 - Ram Prashad Adhikari and PW7 - prosecutrix. He said during his crossexamination that Pandit Ji told him that the accused persons were outsiders and had covered their faces by clothes. He was intimated about the incident by PW3 - Ram Prashad Adhikari about the incident even prior to Police. Learned Counsel submitted that neither this fact came in the story of prosecution nor in the statements of star witnesses of prosecution. This shows deliberations and improvements in their testimonies on tutoring. Learned Counsel for accused further submitted that Investigating Officer has also not taken interest to investigate the case fairly. Learned Counsel for accused further submitted that nothing was recovered from the possession of the accused. Learned Counsel for accused further submitted that no public witnesses were joined at the time of pointing out of the alleged place of incident. Learned Counsel for accused further 61 of 143 62 FIR No. 97/05 PS - Bawana submitted that contradictions in the testimonies of PW3 - Ram Prashad Adhikari, PW7 - prosecutrix and other public witnesses on material points and their testimonies without describing exact role of the accused make it unsafe to convict the accused, considering the fact that testimony was recorded after the gap of 07 years of the incident. Moreover, version of PW3 - Ram Prashad Adhikari and PW7 - prosecutrix is not in consonance with her MLC and DNA Report indicates about the innocence of the accused. Therefore, it would not be safe to convict the accused for the offences alleged and prayed for the acquittal of accused Krish Pal on the charges levelled against him.

13. 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.

14. I have heard Sh. A. K. Gupta, Learned Addl. PP for the State 62 of 143 63 FIR No. 97/05 PS - Bawana and Sh. Deepak Sharma, Learned Amicus Curiae for accused Krish Pal and Ms. Dhaneshwari, Learned Counsel for accused Kamal Das @ Pappu @ Bobi and have also carefully perused the entire record.

15. The charge for the offence punishable u/s 397 IPC against accused Krish Pal is that on the intervening night of 1819/03/2005, at around 12:45 a.m. (midnight) at Sankat Mochan Siddh Hanuman Mandir, Begum Pur, Barwala Road, near School within the jurisdiction of PS - Bawana at the time of committing dacoity at the above said place, he used deadly weapon i.e. country made pistol.

Further, the charge for the offences punishable u/s 395/376(2)(g) IPC against accused Krish Pal and Kamal Das @ Pappu @ Bobi is that on the intervening night of 1819/03/2005, at around 12:45 a.m. (midnight) at Sankat Mochan Siddh Hanuman Mandir, Begum Pur, Barwala Road, near School within the jurisdiction of PS - Bawana, they both alongwith their coaccused Virender @ Billu and Sunil Kumar (both already convicted) and Raj Pal (since PO) committed dacoity of gold ear rings, nose pin of gold, silver pajeb, three sarees and dhoti kurta from the complainant Ram Prashad and his wife/prosecutrix (name 63 of 143 64 FIR No. 97/05 PS - Bawana withheld) and that on the aforesaid date, time and place, they both alongwith their coaccused Virender @ Billu and Sunil Kumar (both already convicted) and Raj Pal (since PO) committed gang rape with prosecutrix (name withheld).

16. 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

17. PW7 - prosecutrix in her statement recorded in the Court on 04/10/2012 while giving her particulars has stated her age as 27 years.

Since PW7 - prosecutrix has stated her age as 27 years on 04/10/2012 at the time of recording her evidence/statement in the Court and the date of alleged incident is 19/03/2005 (the intervening night of 1819/03/2005), on simple arithmetical calculation, the age of the 64 of 143 65 FIR No. 97/05 PS - Bawana prosecutrix comes to 19 years, 05 months and 15 days as on the date of alleged incident on 19/03/2005 (the intervening night of 1819/03/2005).

Moreover, the said factum of age of PW7 - prosecutrix has also not been disputed by accused Krish Pal and Kamal Das. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.

In the circumstances, it stands proved on record that PW7 - prosecutrix was aged 19 years, 05 months and 15 days as on the date of the alleged incident on 19/03/2005 (the intervening night of 1819/03/2005).

MEDICAL EVIDENCE OF THE PROSECUTRIX

18. PW4 Dr. N. S. Khurana, MO, M. B. Hospital, Pooth Khurd, Delhi has deposed that he has been instructed to depose on behalf of Dr. Jay Kumar who is no longer working at M. B. Hospital being acquainted with his handwriting and signature. Dr. Jay Kumar had earlier deposed in this case on 19/05/2007. As per the record on 19/03/2005, prosecutrix (name withheld) W/o Ram Prashad, 22 years 65 of 143 66 FIR No. 97/05 PS - Bawana female was brought to the Hospital at 10:15 a.m. by PCR Van InCharge HC Harbir Singh with alleged H/o sexual assault, as told by the patient on the night of 18/03/2005. There was no history of loss of consciousness, vomiting or seizures. Local examination found no visible external injuries. Dr. Jay Kumar prepared MLC already Ex. PW4/A. It is in his (Dr. Jay Kumar) handwriting and bears his (Dr. Jay Kumar) signature at point 'A'. The patient was referred to Gynae Emergency for detailed examination and expert opinion and further management.

Despite grant of opportunity, PW4 - Dr. N. S. Khurana was not crossexamined on behalf of accused Krish Pal and Kamal Das.

PW41 Dr. Saroj Agarwal, Specialist & Incharge Deptt. of OBS & Gynae, MB Hospital, Delhi has deposed that she has seen MLC already Ex. PW4/A. The Gynae notes on this MLC are already Ex. PW5/A. Court observations : previously proved by Dr. Sunita Seth. These are in the handwriting of Dr. Rashmi. She is conversant with the handwriting and signature of Dr. Rashmi as she has seen her writing and signing during the course of duties at Hospital. Her signatures appears at point 'B'. As per the Gynae notes, patient alleged history of sexual 66 of 143 67 FIR No. 97/05 PS - Bawana assault last night by few persons. She is para one, live one, delivery two months back. She is lactational amenorrhea. Patient was conscious. General condition was fare (fair). Vitals were stable. Per abdomen soft. No external injury found over cheek, neck, breast or private parts. One scratch mark linear approximately 56 cm, 10 cm above left wrist joint was found. No bleeding PV was found. Episiotomy wound healthy, slight discharge PV present. Per vaginal examination, hymen was found ruptured, uterus normal size, anteverted mobile, fornices free. Two vaginal smear slides taken. Pubic hair taken. Cloth of the victim packed, sealed and handed over to IO. She was advised antibiotics, urine for pregnancy test and report to the Gynae OPD. She can elucidate on the medical aspect of this case.

During her crossexamination, PW41 - Dr. Saroj Agarwal has deposed that, "It is correct that the patient was not examined in my presence. It is correct that the MLC was not prepared in my presence."

There is nothing in the crossexamination of PW41 - Dr. Saroj Agarwal so as to impeach her creditworthiness.

In view of above and in the circumstances, the medical 67 of 143 68 FIR No. 97/05 PS - Bawana examination vide MLC Ex. PW4/A and the gynaecological examination vide Gynae Notes Ex. PW5/A on the MLC Ex. PW4/A of PW7 - prosecutrix stands proved on the record. DNA FINGER PRINTING EVIDENCE

19. PW39 Dr. N. K. Singh, CMO, Dr. BSA Hospital, Rohini has deposed that on 14/02/2012 Krish Pal S/o Vikram aged 45 years was brought before him by SI Anwar Khan of PS - Bawana for purposed of blood collection. After collecting the blood on sterlized gauze piece the exhibits was sealed with the seal of the hospital and handed over to the IO. The MLC of Krish Pal in this regard is Ex PW39/A bearing his signature at point 'A'.

PW40 Dr. K. Kiran, CMO, Dr. BSA Hospital, Rohini has deposed that on 14/02/2012 Kamal Das @ Pappu S/o Jagdish Babu aged 38 years was brought before her by SI Somveer of PS - Bawana for purposes of blood collection. After collecting the blood in sterlized gauze piece the exhibits was sealed with the seal of the Hospital and handed over to the IO. The MLC of Kamal Das @ Pappu in this regard 68 of 143 69 FIR No. 97/05 PS - Bawana is Ex. PW40/A bearing his signature at point 'A'.

PW13 Sh. A. K. Srivastava, Dy. Director, FSL, Rohini, Delhi has deposed that on 08/09/2008, he was examined before the Court and he examined the exhibits and his detailed reports are already Ex. PW13/A to Ex. PW13/R. On 29/09/2012, one cloth parcel with seal of 'SD' containing Ex. 1 i.e. a piece of gauze cloth having dark brown stains described as blood sample of accused vide MLC No. 677/12 on sterlized gauze piece vide FSL No. 2012/DNA/2100. On 15/05/2012 vide FSL No. 2012/DNA/3314 one paper box sealed with the seal of 'SD' containing Ex. 1 which were internally marked as Ex. 2 in DNA Unit. The exhibit was a piece of gauze cloth having dark brown stains described as blood sample of accused vide MLC No. 1941/12 dated 05/05/2012. Now the source of Ex. 1 and Ex. 2 were subjected to DNA isolation. DNA was isolated from the source of Ex. 1 and 2. the DNA profile was generated from Ex. 1 and Ex. 2 using amplified STR identifiler PCR amplification. Data was analysed by using gene mapper IDX software. On conclusion it was found that the DNA profiling (STR analysis) proformed on the Exhibits 1 & 2 is sufficient to conclude that DNA profile of the source of 69 of 143 70 FIR No. 97/05 PS - Bawana Ex. 1 i.e. blood sample of accused vide MLC No. 677/12 vide FSL 2012/DNA/2100 and DNA profile of source of Ex. 2 (blood sample of accused vide MLC No. 1941/12 vide FSL No. 2012/DNA/3314) are not similar which the DNA profile from the source of Ex. 2B (area 1 and area 2 on salwar of victim/prosecutrix (name withheld)) and Ex. 4B (microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA/07/05 on 31/05/2005. His detailed report in this regard is Ex. PW13/S and Genotype analysis report is Ex. PW13/T both bearing his signatures at point 'A'.

Despite grant of opportunity, PW39 Dr. N. K. Singh, PW40 Dr. K. Kiran and PW13 Sh. A. K. Srivastava were not cross examined on behalf of accused Krish Pal and Kamal Das.

As per DNA Report Ex. PW13/S, the description of the sources, DNA examination, result of examination and conclusion reads as under : DESCRIPTION OF THE SOURCE Forensic Sample received on 29/03/2012 vide FSL No. 2012/DNA2100.

70 of 143 71 FIR No. 97/05 PS - Bawana Parcel 1 : One cloth parcel sealed with the seal of 'SD' containing exhibit '1'.

Exhibit 1 : A piece of gauze cloth piece having dark brown stains described as "Blood sample of accused vide MLC No. 677/12 on sterilized gauze piece.

Forensic Sample received on 15/05/2012 vide FSL No. 2012/DNA3314.

Parcel 1 : One paper box sealed with the seal of 'SD' containing exhibit '1', which is internally marked in DNA Unit as Exhibit '2'. Exhibit 2 : A piece of gauze cloth piece having dark brown stains described as "Blood sample of accused vide MLC No. 1941/12 dated 05/05/2012 on sterilized gauze piece.

DNA EXAMINATION The source of exhibits '1', & '2' were subjected to DNA isolation. The DNA was isolated from the source of exhibits '1' & '2'. The DNA profile was generated for the exhibits '1' & '2' by using AmpFL STR Identifiler PCR Amplification Kit. STR analysis was used for each of the sample. Data was analyzed by using GeneMapper IDX Software. RESULT OF EXAMINATION The DNA profiles of the source of exhibit '1' (Blood sample of accused 71 of 143 72 FIR No. 97/05 PS - Bawana vide MLC No. 677/12 vide FSL 2012/DNA2100) & exhibit '2' (Blood sample of accused vide MLC No. 1941/12 vide FSL 2012/DNA3314) are not accounted in the DNA profiles of the biological fluid (semen) present on the source of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA07/05 on 31/05/2005.

CONCLUSION The DNA profiling (STR analysis) performed on the exhibits '1' & '2' provided is sufficient to conclude that the DNA profile of the source of exhibit '1' (Blood sample of accused vide MLC No. 677/12 vide FSL 2012/DNA2100) & DNA profile of the source of exhibit '2' (Blood sample of accused vide MLC No. 1941/12 vide FSL 2012/DNA3314) are not similar with the DNA profile from the source of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA07/05 on 31/05/2005.

Note : Remnants of the exhibits have been sealed with seal of AKS FSL DELHI.

As per Genotype analysis Ex. PW13/T for establishing identity of accused using MICROSATELLITES reads as under :

i) D8S1179 ii) D21S11 iii) D7S820 iv) CSF1PO v) D3S1358 vi) TH01 72 of 143 73 FIR No. 97/05 PS - Bawana

vii) D13S317 viii) D16S539 ix) D2S1338 x) D19S433 xi) vWA xii) TP0X xiii) D18S51 xiv) D5S818 xv) FGA & AMELOGENIN Loci Exhibit 2b Exhibit 2b Exhibit 4b Exhibit 1 Exhibit 2 Salwar AI Salwar AII Microslide Blood sample of Blood sample of Vide FSL Vide FSL Vide FSL Accused MLC No. Accused MLC No. 2005/B960 2005/B/960 2005/B960 677/12 1941/12 Allele Data Allele Data Allele Data Vide FSL Vide FSL 2012/DNA2100 2012/DNA3314 Allele data Allele data D8S1179 10,12 10,11,12,13,14,1 10,11,12,13,14,15 10 16 11 15 5 D21S11 31,32.2 29,29.2,30,30.2, 29,29.2,30,31,32.2, 28 29 31 32.2 31,32.2 33.2 D7S820 8,10 8,10,11 10,11 7 8 11 13 CSF1PO 10,11 10,11,12 10,12 9 12 10 14 D3S1358 14,16 14,15,16,17,18 14,15,16,17,18 15 17 15 18 TH01 7 6,7,8,9,9.3 7,8,9,9.3 9 9 6 9 D13S317 8,12 8,11,12 8,11,12 12 12 10 13 D16S539 10,11 9,10,11,12 9,10,11,12,13 11 11 11 13 D2S1338 19,23 18,19,22,23 18,19,22,23 18 25 23 23 D19S433 15,16 12,13,14,15,16 11,12.2,13.2,15,16 13 14.2 14 16 vWA 16,18 13,14,15,16,17,1 13,14,16,17,18,20 15 16 15 15 8 TP0X 8,11 7,8,10,11 7,8,10,11 11 11 10 11 D18S51 14 12,13,14,16,18,1 14,15,19 16 20 12 16 9 D5S818 11,12 10,11,12 10,11,12 12 12 11 12 FGA 20,24 20,23,24 20,23,24 19 21 24 24 AMELO XY XY XY X Y X Y GENIN 73 of 143 74 FIR No. 97/05 PS - Bawana The allelic data of source of the exhibit 1 vide FSL No. 2012/DNA2100 & 2 vide FSL No. 2012/DNA3314 are not ACCOUNTED in allele data of source of exhibit 2b & 4b vide FSL No. 2005/N960.

It is to be noticed that, as per the description of the articles contained in the parcel, parcel no. 1 (blood sample of accused Kamal Das @ Pappu @ Bobi vide MLC No. 1941/12) was seized vide seizure memo Ex. PW44/A dated 05/05/2012 and parcel no. 2 (blood sample of accused Krish Pal vide MLC No. 677/12) was seized vide seizure memo Ex. PW33/A dated 14/02/2012. The exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) vide FSL No. 2005/B0960/DNA07/05 dated 31/05/2005 were examined vide detailed reports Ex. PW13/A to Ex. PW13/R as per the examination inchief of PW13 - Sh. A. K. Srivastava, Deputy Director, FSL, Rohini, Delhi.

On careful perusal and analysis of the DNA Finger Printing 74 of 143 75 FIR No. 97/05 PS - Bawana Evidence Ex. PW13/S on record and the Genotype Data Ex. PW13/T, it shows that the DNA profiles of the source of exhibit '1' (Blood sample of accused Krish Pal vide MLC No. 677/12 vide FSL 2012/DNA2100) & exhibit '2' (Blood sample of accused Kamal Das @ Pappu @ Bobi vide MLC No. 1941/12 vide FSL 2012/DNA3314) are not accounted in the DNA profiles of the biological fluid (semen) present on the source of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA07/05 on 31/05/2005 and the DNA profiling (STR analysis) performed on the exhibits '1' & '2' provided is sufficient to conclude that the DNA profile of the source of exhibit '1' (Blood sample of accused Krish Pal vide MLC No. 677/12 vide FSL 2012/DNA2100) & DNA profile of the source of exhibit '2' (Blood sample of accused Kamal Das @ Pappu @ Bobi vide MLC No. 1941/12 vide FSL 2012/DNA3314) are not similar with the DNA profile from the source of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) in case reported vide FSL No. 2005/B0960/DNA07/05 on 31/05/2005.

75 of 143 76 FIR No. 97/05 PS - Bawana Although, the DNA profiling of exhibit '1' (Blood sample of accused Krish Pal vide MLC No. 677/12 vide FSL 2012/DNA2100) & exhibit '2' (Blood sample of accused Kamal Das @ Pappu @ Bobi vide MLC No. 1941/12 vide FSL 2012/DNA3314) are not similar with the DNA profiling of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) yet the sight cannot be lost of the fact that prosecution has discharged its initial burden of proving the presence of HUMAN SEMEN on exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim).

Both the accused Krish Pal and Kamal Das @ Pappu @ Bobi were under an obligation to explain how and under what circumstances, the Human semen came to be present on the said exhibits '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) as detailed hereinabove. The absence of such an explanation both in 76 of 143 77 FIR No. 97/05 PS - Bawana the section 313 Cr.P.C. statements of both the accused Krish Pal and Kamal Das @ Pappu @ Bobi and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.

20. Learned Counsel for accused submitted that DNA report proved in the testimony of PW13 - Dr. A. K. Srivastava is in the favour of the accused.

I have carefully perused and analysed the evidence on record.

The DNA Finger Printing Evidence Ex. PW13/S and the Genotype Data Ex. PW13/T has been reproduced, discussed and analysed hereinbefore. Nonmatching of the DNA profiling of exhibit '1' (Blood sample of accused Krish Pal vide MLC No. 677/12 vide FSL 2012/DNA2100) & exhibit '2' (Blood sample of accused Kamal Das @ Pappu @ Bobi vide MLC No. 1941/12 vide FSL 2012/DNA3314) with the DNA profiling of exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the 77 of 143 78 FIR No. 97/05 PS - Bawana victim) does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Prosecution has discharged its initial burden of proving the presence of HUMAN SEMEN on exhibit '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim). At the cost of repetition, accused Krish Pal and Kamal Das @ Pappu @ Bobi were under an obligation to explain how and under what circumstances, the Human semen came to be present on the exhibits '2b' (Area I & Area II on Salwar of victim/prosecutrix (name withheld) & Exhibit '4b' (Microslide from the victim) as detailed hereinabove. The absence of such an explanation both in the section 313 Cr.P.C. statements of both the accused Krish Pal and Kamal Das @ Pappu @ Bobi and their omission to lead any evidence in this regard and their complete denial becomes an additional link in the prosecution case.

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

21. Now let the testimonies of PW7 Prosecutrix and PW3 -

78 of 143 79 FIR No. 97/05 PS - Bawana Ram Parshad Adhikari, her husband be perused and analysed.

PW7 prosecutrix, in her examinationinchief recorded on 04/10/2012 has deposed which is reproduced and reads as under : "I have come from Nepal alongwith my husband, yesterday evening (03/10/2012). In the year, 2005, I was residing alongwith my husband and my daughter aged about only two months old and my brother Keshav in the Hanuman Temple at Barwala Road. My husband Ram Parshad was the Pandit of the temple and we have been provided one room, back side of the Temple. On 19/03/2005, I alongwith my brother Keshav aged around five years at that time and daughter aged about two months were sleeping in the room back side of the Temple and my husband was sleeping in the main room of the Temple which was locked from the outside. At about 12:30 a.m. (mid night) I heard some noise and fourfive persons entered in our room and the assailants tied the hands and legs of my husband and took him to another room. The assailants put pistol on my chest as they all were carrying fire arms and they also put a pistol on my brother Keshav and shut his mouth and he was taken in another room where my husband was kept by the assailants. Thereafter, the fourfive assailants committed rape upon me one by one on the pointing of pistols after tearing my clothes. Thereafter, I became unconscious. When I regained my consciousness I found myself in a hospital and was told that the Police had brought me there. I was provided medical treatment in the hospital where I was admitted for 23 days. Police interrogated me and I told them all the facts and whatever had happened.

The assailants took away my gold ear rings and nose pin and 79 of 143 80 FIR No. 97/05 PS - Bawana my silver pajayab and also the clothes of my husband.

I can identify the other assailants who committed the above incident. Witness has seen all the persons in the Court room and has correctly identified accused Kamal Dass and accused Krish Pal as the assailants who also committed the rape upon her, after pointing out towards them.

Earlier my testimony was recorded before Hon'ble Court on 19/05/2007 and on 22/05/2007 and I correctly identified two assailants who committed the above said incident.

I can identify the case property if shown to me. At this stage, MHC(M) has produced unsealed parcel which was already opened during the examination of previous witness and one printed cloth is taken out and shown to the witness who correctly identified the same as wrapped by one of the assailants at the time of the incident. Same is already Ex. P1.

At this stage, MHC(M) has produced unsealed parcel which was already opened during the examination of previous witness and one saree is taken out and shown to the witness who correctly identified the same which was used by her and on the day of incident the same was lying in the room where she was sleeping and was seized by the Police. Same is already Ex. P2.

At this stage, MHC(M) has produced unsealed parcel which was already opened during the examination of previous witness and plastic sheet and one cover of quilt is taken out and shown to the witness who correctly identified the same belonging to her house at the time of the incident. Same is already Ex. P3 and Ex. P4.

At this stage, MHC(M) has produced one sealed parcel duly sealed with the seal of Court. Same is opened after breaking the seal and 80 of 143 81 FIR No. 97/05 PS - Bawana one ear ring is taken out and shown to the witness who correctly identified the same as belonging to her and wearing at the time of incident. Same is already Ex. P5.

At this stage, MHC(M) has produced one sealed parcel duly sealed with the seal of Court. Same is opened after breaking the seal and one lock is taken out and shown to the witness who correctly identified the same which was put on the gate of the Temple which was broken by the assailant. Same is already Ex. P6.

At this stage, MHC(M) has produced one unsealed parcel which was already opened during the examination of previous witness and one bed sheet is taken out and shown to the witness who correctly identified the same of her bed. Same is already Ex. P7 (also wrongly exhibited already as Ex. P5 in the testimony of PW3)."

From the aforesaid narration of PW7 - prosecutrix, it is clear that she had come from Nepal alongwith her husband, yesterday evening (03/10/2012). In the year, 2005, she was residing alongwith her husband and her daughter aged about only two months old and her brother Keshav in the Hanuman Temple at Barwala Road. Her husband Ram Parshad was the Pandit of the Temple and they had been provided one room, back side of the Temple. On 19/03/2005, she alongwith her brother Keshav aged around five years at that time and daughter aged about two months were sleeping in the room back side of the Temple and 81 of 143 82 FIR No. 97/05 PS - Bawana her husband was sleeping in the main room of the Temple which was locked from the outside. At about 12:30 a.m. (mid night) she heard some noise and fourfive persons entered in their room and the assailants tied the hands and legs of her husband and took him to another room. The assailants put pistol on her chest as they all were carrying fire arms and they also put a pistol on her brother Keshav and shut his mouth and he was taken in another room where her husband was kept by the assailants. Thereafter, the fourfive assailants committed rape upon her one by one on the pointing of pistols after tearing her clothes. Thereafter, she became unconscious. When she regained her consciousness she found herself in a hospital and was told that the Police had brought her there. She was provided medical treatment in the Hospital where she was admitted for 23 days. Police interrogated her and she told them all the facts and whatever had happened. The assailants took away her gold ear rings and nose pin and her silver pajayab and also the clothes of her husband. She correctly identified accused Kamal Das and accused Krish Pal as the assailants who also committed the rape upon her, after pointing out towards them. Earlier her testimony was recorded before Hon'ble Court on 19/05/2007 and on 22/05/2007 and she correctly 82 of 143 83 FIR No. 97/05 PS - Bawana identified two assailants who committed the above said incident. She identified one printed cloth which was wrapped by one of the assailants at the time of the incident as Ex. P1; one saree which was used by her and on the day of incident the same was lying in the room where she was sleeping and was seized by the Police as Ex. P2; plastic sheet and one cover of quilt belonging to her house at the time of the incident as Ex. P3 and Ex. P4 respectively, one ear ring as belonging to her and wearing at the time of incident as Ex. P5; one lock which was put on the gate of the Temple which was broken by the assailant as Ex. P6 and one bed sheet of her bed as Ex. P7.

PW7 - Prosecutrix during her crossexamination has negated the suggestions that she was wearing any jewelry articles at night when the incident had taken place or that the accused are innocent or that she is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that she is deposing falsely.

Inspite of incisive crossexamination of PW7 - prosecutrix 83 of 143 84 FIR No. 97/05 PS - Bawana 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. The testimony of PW7 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, 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 Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

The testimony of PW7 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the DNA Finger Printing Evidence as discussed hereinbefore.

The testimony of PW7 - Prosecutrix is also found to be corroborated by PW3 - Sh. Ram Parshad Adhikari, her husband, who is also the eye witness and to whom prosecutrix disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

84 of 143 85 FIR No. 97/05 PS - Bawana PW3 - Ram Parshad Adhikari in his examinationinchief has deposed that : "In the year 2005, he was residing at village Varwala, Begumpur, Barwala Road and I was Priest (Pujari) in the Sankat Mochan, Sidh Hanuman Mandir as (and) I was residing in the above said Temple alongwith my wife/prosecutrix (name withheld) and my brother inlaw (sala) Keshav Raj. On 19/03/2005 a (an) incident took place. At that time, I was having a daughter aged about 1½ months old only. On 19/03/2005 at about 1:00 a.m. (midnight) I was sleeping in the above said Temple as I had slept in the main Temple at about 10:00 p.m. in the intervening night after taking my dinner and my wife and my brotherin law slept in the room backside of the Temple and at about 1:00 a.m. (midnight) someone pulled my lock of tail (mere chote khichi) and I found many persons in the Temple. Again said 1012 persons in the Temple and asked them about the reasons of their coming there. They were having swords, pistols and gun with them. I (became) afraid after seeing them. They demanded Rs. One lac from me but I told them that I was not having any money and thereafter they had broken the lock of the gate and came inside of the Temple and they started beating me. They tied my hands and legs with ropes. Thereafter, they took me to the back side of the Temple in the park. Thereafter, they searched inside the Temple about the money after taking the key from under my pillow. They took possession of my newly purchased pressure cooker and other utensils from my room. Thereafter, they entered in the room where my wife and brotherinlaw were sleeping. I heard the noise of my wife, brotherinlaw and daughter. They searched whole room and thereafter 85 of 143 86 FIR No. 97/05 PS - Bawana my brotherinlaw was brought before me and took us in the room behind the Temple and told us not to see outside of the room. Thereafter I heard the cries of my wife/prosecutrix (name withheld) from our room and after long time the above said persons came outside from the room. Thereafter, they brought me and my brotherinlaw and kept us in the same room where my wife was and closed the doors from the outside. In the next morning I raised alarm and some passers by opened the doors from outside. I found that the whole Temple premises in ran sack condition. I immediately went to the School in front of the Temple and call (called) the Chowkidar of the School and went to a PCO along with the chowkidar on his bicycle in village Barwala and informed the owner of the Temple namely Mandeep Rawat and thereafter on his asking I made call at the Police Station - Bawana. Thereafter, I went to the house of Joginder, nephew of Mandeep. I informed all the facts to him. Thereafter we returned back to the Temple. Thereafter, we again went to the village Barwala and informed the owner of the Temple about the condition of the Temple. Thereafter, we returned back to the Temple. Police also reached at the Temple. I told all the facts to the Police. Police recorded my statement which is already Ex. PW3/A (in the main file) bearing my signatures at point 'A'. My wife was unconscious at that time and we with the help of Police took my wife to the Balmiki Hospital at Pooth Khurd and she was medically treated there and she was admitted in the Hospital for about three days. After one or two days, my wife/prosecutrix (name withheld) came to her senses and Police interrogated my wife and recorded her statement. My wife/prosecutrix (name withheld) told that she was raped by 56 persons in the room after tearing her clothes. My wife also told that her ear rings and noise (nose) pin of gold and silver pajayeb (Pajeb) were taken away by the above said assailants. The abovesaid assailants took away my Kurta Pyajama and 86 of 143 87 FIR No. 97/05 PS - Bawana sarees of my wife.

After some times, Police arrested two persons and I identified those accused persons as the assailants who committed the above said daicoity and gang rape. The accused Virender pointed out the place of the incident vide already Ex. PW3/B (in the main file) which bears my signatures at point 'A' and accused Sunil Kumar pointed out the place of incident vide already Ex. PW3/C (in the main file) bearing my signatures at point 'A'.

My statement was recorded before Hon'ble Court on 02/11/2006 and on 22/01/2008.

I can identify the articles, seized by the Police. At this stage, MHC(M) has produced a sealed parcel duly sealed with the seal of the Court. Same is opened after breaking the seal and one printed cloth is taken out and shown to the witness who correctly identified the same as wrapped by one of the assailants at the time of the incident. Same is already Ex. P1.

At this stage, MHC(M) has produced another sealed parcel duly sealed with the seal of the Court. Same is opened after breaking the seal and one saree is taken out and shown to the witness who correctly identified the same which was wearing by his wife at the time of the incident and was seized by the Police. Same is already Ex. P2.

At this stage, MHC(M) has produced another sealed parcel duly sealed with the seal of the Court. Same is opened after breaking the seal and plastic sheet and one cover of quilt is taken out and shown to the witness who correctly identified the same belonging to his house at the time of the incident. Same is already Ex. P3 and Ex. P4.

At this stage, MHC(M) has produced another sealed parcel duly sealed with the seal of the Court. Same is opened after breaking the seal and bed sheet is taken out and shown to the witness who correctly 87 of 143 88 FIR No. 97/05 PS - Bawana identified the same belonging to his house at the time of the incident. Same is already Ex. P5 (Also as Ex. P7 in the evidence of PW7 - Prosecutrix).

I can identify the accused if shown to me.

At this stage, witness has correctly identified the accused Kamal Dass and accused Krish Pal by pointing out towards them (from amongst the persons sitting in the Court but not by name)."

From the aforesaid narration of PW3 - Ram Parshad Adhikari, it is clear that in the year 2005, he was residing at village Varwala (Barwala), Begumpur, Barwala Road and he was Priest (Pujari) in the Sankat Mochan, Sidh Hanuman Mandir and he was residing in the above said Temple alongwith his wife/prosecutrix (name withheld) and his brotherinlaw (sala) Keshav Raj. On 19/03/2005 an incident took place. At that time, he was having a daughter aged about 1½ months old only. On 19/03/2005 at about 1:00 a.m. (midnight) he was sleeping in the above said Temple as he had slept in the main Temple at about 10:00 p.m. in the intervening night after taking his dinner and his wife and his brotherinlaw slept in the room backside of the Temple and at about 1:00 a.m. (midnight) someone pulled his lock of tail and he found many persons in the Temple. Again said 1012 persons in the Temple and 88 of 143 89 FIR No. 97/05 PS - Bawana asked them about the reasons of their coming there. They were having swords, pistols and gun with them. He became afraid after seeing them. They demanded Rs. One lac from him but he told them that he was not having any money and thereafter they had broken the lock of the date and came inside of the Temple and they started beating him. They tied his hands and legs with ropes. Thereafter, they took him to the back side of the Temple in the park. Thereafter, they searched inside the Temple about the money after taking the key from under my pillow. They took possession of his newly purchased pressure cooker and other utensils from his room. Thereafter, they entered in the room where his wife and brotherinlaw were sleeping. He heard the noise of his wife, brotherin law and daughter. They searched whole room and thereafter his brother inlaw was brought before him and took them in the room behind the Temple and told them not to see outside of the room. Thereafter he heard the cries of his wife/prosecutrix (name withheld) from their room and after long time the above said persons came outside from the room. Thereafter, they brought him and his brotherinlaw and kept them in the same room where his wife was and closed the doors from the outside. In the next morning he raised alarm and some passers by opened the doors 89 of 143 90 FIR No. 97/05 PS - Bawana from outside. He found that the whole Temple premises in ran sack condition. He immediately went to the School in front of the Temple and called the Chowkidar of the School and went to a PCO along with the Chowkidar on his bicycle in village Barwala and informed the owner of the Temple namely Mandeep Rawat and thereafter on his asking he made call at the Police Station - Bawana. Thereafter, he went to the house of Joginder, nephew of Mandeep. He informed all the facts to him. Thereafter, they returned back to the Temple. Thereafter, they again went to the village Barwala and informed the owner of the Temple about the condition of the Temple. Thereafter, they returned back to the Temple. Police also reached at the Temple. He told all the facts to the Police. Police recorded his statement which is already Ex. PW3/A (in the main file) bearing his signatures at point 'A'. His wife was unconscious at that time and they with the help of Police took his wife to the Balmiki Hospital at Pooth Khurd and she was medically treated there and she was admitted in the Hospital for about three days. After one or two days, his wife/prosecutrix (name withheld) came to her senses and Police interrogated his wife and recorded her statement. His wife/prosecutrix (name withheld) told that she was raped by 56 persons 90 of 143 91 FIR No. 97/05 PS - Bawana in the room after tearing her clothes. His wife also told that her ear rings and nose pin of gold and silver Pajeb were taken away by the above said assailants. The abovesaid assailants took away his Kurta Pyajama and sarees of his wife. After some times, Police arrested two persons and he identified those accused persons as the assailants who committed the above said daicoity and gang rape. The accused Virender pointed out the place of the incident vide already Ex. PW3/B (in the main file) which bears his signatures at point 'A' and accused Sunil Kumar pointed out the place of incident vide already Ex. PW3/C (in the main file) bearing his signatures at point 'A'. His statement was recorded before Hon'ble Court on 02/11/2006 and on 22/01/2008. He identified one printed cloth which was wrapped by one of the assailants at the time of incident as Ex. P1, saree which his wife was wearing at the time of incident as Ex. P2, plastic sheet and one cover of quilt belonging to his house Ex. P3 and Ex. P4 respectively and one bed sheet belonging to his house at the time of incident Ex. P5 (Also as Ex. P7 in the evidence of PW7 - Prosecutrix). He correctly identified accused Kamal Das and Krish Pal present in the Court.

91 of 143 92 FIR No. 97/05 PS - Bawana During his crossexamination PW3 - Ram Parshad Adhikari has negated the suggestions that after coming to the Court, the Police officers had read over the proceedings and told him what to depose or that both the accused had been shown to him by the Police officials or that he had identified both the accused namely Kamal Das and Krish Pal after they were pointed out to him by the Police officers in the morning or that the accused are innocent or that he is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that he is deposing falsely.

Inspite of incisive crossexamination of PW3 - Ram Parshad Adhikari, nothing material has been brought out so as to impeach his creditworthiness. He has withstood the rigors of crossexamination without being shaken. His testimony 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] is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in his statement to suggest that he had any animus against the accused Krish Pal and Kamal Das @ Pappu @Bobi to 92 of 143 93 FIR No. 97/05 PS - Bawana falsely implicate them in the case.

22. The testimony of PW3 - Ram Prasad Adhikari is also found to be corroborated by PW17 - Yogender to whom he disclosed the facts relating to the crime shortly after the incident at the first available opportunity being relevant u/s 6 & 8 of the Indian Evidence Act, 1872.

PW17 - Yogender in his examinationinchief has deposed which is reproduced and reads as under : "On 19/03/2005, I was residing at village and post office Barwala alongwith my maternal uncle namely Raipal alongwith my wife and children. On that day Pandit Ram Parshad came to our house at about 7:45 - 8:00 a.m. and informed that robbers/daicot had come to the Temple and committed robbery of articles and had also raped his wife. That Mandir belonged to my Mausa and I immediately telephoned to my Mausa about the incident and thereafter on his asking I telelphoned (telephoned) to the Police at 100 number.

Thereafter I alongwith Panditji reached the Temple and found that the lock of the Temple was broken and the articles laying in the room inside the Mandir lying sacked. In the meanwhile Police officials of PCR and local Police also leached (reached) there and recorded my statement."

93 of 143 94 FIR No. 97/05 PS - Bawana During his crossexamination, PW17 - Yogender has deposed that : "I made the telephone call on 100 number from the STD Booth. It is correct that I did not come to know at night. The Police did not carry out any investigations in my presence nor my signatures are taken on any proceedings."

There is nothing in the crossexamination of PW17 - yogender so as to impeach his creditworthiness. His testimony on careful perusal and analysis is found to be clear, cogent and convincing.

23. The testimony of PW3 - Ram Prasad Adhikari that he was working as a Pujari at Sankat Mochan Hanuman Mandir on the date of incident and was residing in the room in the Mandir alongwith his family has been corroborated by PW9 - Mandip Singh, owner of the Mandir as well as by PW10A - Satbir Singh, brotherinlaw of Mandip Singh (PW9). The relevant part of examinationinchief of PW9 - Mandip Singh is reproduced and reads as under : "I am owner of Sankat Mochan Hanuman Mandir, Barwala, Begum Pur Road, Delhi and Ram Prasad Tewari (Be read as Adhikari) was appointed by my wife as a Pujari of the Mandir since, 2003. But I 94 of 143 95 FIR No. 97/05 PS - Bawana cannot tell the exact date. Ram Prasad Tiwari (Be read as Adhikari) used to reside in the room in the Mandir/Temple alongwith his family comprising of his wife and baby daughter and one brotherinlaw aged about 45 years at that time."

The relevant part of examinationinchief of PW10A - Satbir Singh is reproduced and reads as under : "My brotherinlaw/behnoi Mandeep is the owner of Sankat Mochan Sidh Hanuman Mandir, Barwala, Begum Pur Road, Delhi. Sh. Ram Prasad Adhikari was appointed as a Pujari in the abovesaid Temple and he used to reside in the Temple premises in a room alongwith his wife/prosecutrix (name withheld) and one newly born daughter and two other children one of which was the brotherinlaw of Ram Prasad aged about 57 years."

There is nothing in the crossexamination of PW9 - Mandip Singh and PW10A - Satbir Singh so as to impeach their creditworthiness. On careful perusal and analysis the testimonies of PW9 - Mandip Singh and PW10A - Satbir Singh are found to be clear, cogent and convincing.

24. On analysing the entire testimony of PW7 - prosecutrix, it 95 of 143 96 FIR No. 97/05 PS - Bawana transpires that she has described the scenario implicating the accused Krish Pal and Kamal Das @ Pappu @ Bobi [alongwith accused Virender @ Billu and Sunil Kumar (since convicted) and accused Raj Pal (since PO)] to be the author of the crime, of the committal of dacoity, use of deadly weapon i.e pistols at the time of committing of the dacoity and at the time of the committal of the gang rape upon her. During her examinationinchief, she correctly identified accused Kamal Das and Krish Pal as the assailants who also committed the rape upon her, after pointing out towards them. The accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching cross examination. During her crossexamination, she specifically negated the suggestions that the accused are innocent or that she is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that she is deposing falsely. The testimony of PW7

- prosecutrix is also found to be corroborated by Test Identification Parade (TIP) proceedings evidence of accused Krish Pal Ex. PX4 (colly.) and that of accused Kamal Das @ Pappu @ Bobi Ex. PX8 (colly.) as well as by the Test Identification Parade (TIP) proceedings of case property Ex. PW18/A to Ex. PW 18/D. Her testimony is also found to be 96 of 143 97 FIR No. 97/05 PS - Bawana corroborated by PW3 - Sh. Ram Prasad Adhikari, her husband, an eye witness and victim himself during the course of the commission of the crime and he has also correctly identified accused Krish Pal and accused Kamal Das @ Pappu @ Bobi. During his crossexamination, he negated the suggestions that both the accused had been shown to him by the Police officials or that he had identified both the accused namely Kamal Das and Krish Pal after they were pointed out to him by the Police officers in the morning.

However, a futile attempt has been made by accused Kamal Das @ Pappu @ Bobi to save his skin from the clutches of law by way of examination of one defence witness namely DW1 Sunder Dass.

DW1 - Sunder Dass, in his examinationinchief has deposed that he is working in Khateli as plumber. About 10 years, he was working Mehanmati, Ganesh Pur on a gur making kolhu (gur banane ka kaam karta tha). 7/6 persons were working on the said kohlu with him. Kawal (Kamal) Dass was also working with him and he had worked on the said kohlu with him from September, 2004 to April, 2005. He was residing in Mehanmati, Ganesh Pur during this period.

97 of 143 98 FIR No. 97/05 PS - Bawana During his crossexamination, DW1 - Sunder Dass has deposed that : "I know accused Kamal Dass since his childhood as he is resident of my village. We used to work on Kohlu for about 5/6 months in a year. We did not use to mark attendance at the Kohlu neither we maintained any record of the attendance. We also did not use to maintained (maintain) any record of the labour employed at Kohlu. I have come to depose in the court at the instance of wife of accused Kamal Dass. It is wrong to suggest that accused Kamal Dass was not working in our Kohlu and I am deposing falsely to save the accused Kamal Dass."

On careful perusal and analysis, the testimony of DW1 - Sunder Dass is found to be vague, uncertain and nonspecific. The theory propounded by DW1 - Sunder Dass that, "7/6 persons were working on the Gur making Kohlu in Mehanmati, Gurdass Pur with him. Kawal (Kamal) Dass was also working with him and he had worked on the said kohlu with him from September, 2004 to April, 2005" besides being vague, has also not been made probable, much established by any cogent evidence. Nor any suggestion regarding the said theory so propounded by DW1 - Sunder Dass was put to PW7 -

98 of 143 99 FIR No. 97/05 PS - Bawana prosecutrix during her incisive and lengthy crossexamination. Nor any suggestion regarding the said theory was put to PW3 - Ram Parshad Adhikari, her husband during his lengthy crossexamination. Nor even a single word regarding the said theory, so propounded by DW1 - Sunder Dass was uttered by accused Kamal Das @ Pappu @ Bobi during his statement recorded u/s 313 Cr.P.C. In the circumstances, the said theory, so floated, is merely an afterthought and falls flat on the ground.

The part of the crossexamination of DW1 - Sunder Dass, as reproduced hereinabove, that they did not use to mark attendance at the Kohlu neither they maintained any record of the attendance and they also did not use to maintain any record of the labour employed at Kohlu and that he has come to depose in the Court at the instance of wife of accused Kamal Das, has knocked out the defence of the accused Kamal Das @ Pappu @ Bobi. At the cost of repetition, the relevant part of the crossexamination of DW1 - Sunder Dass is reproduced and reads as under : "We did not use to mark attendance at the Kohlu neither we maintained any record of the attendance. We also did not use to maintained (maintain) any record of the labour employed at Kohlu.

99 of 143 100 FIR No. 97/05 PS - Bawana I have come to depose in the court at the instance of wife of accused Kamal Dass."

In view of above and in the circumstances, the testimony of DW1 - Sunder Dass does not inspire confidence and he is a procured witness.

25. While analysing the testimonies of PW7 - Prosecutrix and PW3 - Ram Parshad Adhikari, her husband as discussed hereinabove inspite of incisive crossexamination of PW7 - Prosecutrix and PW3 - Ram Parshad Adhikari nothing has come out in their statements which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW7 Prosecutrix that she was wearing any jewelry articles at night when the incident had taken place or that the accused are innocent or that she is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that she is deposing falsely and the suggestions to PW3 - Ram Parshad Adhikari that after coming to the Court, the Police officers had read over the proceedings and told him 100 of 143 101 FIR No. 97/05 PS - Bawana what to depose or that both the accused had been shown to him by the Police officials or that he had identified both the accused namely Kamal Das and Krish Pal after they were pointed out to him by the Police officers in the morning or that the accused are innocent or that he is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that he is deposing 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 Krish Pal and Kamal Das @ Pappu @ Bobi have been falsely implicated because of animosity.

26. 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 : 101 of 143 102 FIR No. 97/05 PS - Bawana "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 : 102 of 143 103 FIR No. 97/05 PS - Bawana ".....even slight penetration is sufficient and emission is unnecessary."

On analysing the testimony of PW7 - Prosecutrix in the light of medical and gynaecological evidence vide MLC Ex. PW4/A and gynae notes Ex. PW5/A on the MLC Ex. PW4/A of the prosecutrix, DNA Report Ex. PW13/S together with the MLC of accused Krish Pal Ex PW39/A and MLC of accused Kamal Das @ Pappu Ex. PW40/A, 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 of semen, 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 both the accused Krish Pal and Kamal Das @ Pappu @ Bobi with PW7 - Prosecutrix without her consent.

27. Learned Counsel for accused submitted that accused Kamal Das and Krish Pal were arrested on 21/04/2012 and 01/02/2012 by the 103 of 143 104 FIR No. 97/05 PS - Bawana Police only on the disclosure statements of accused Virender @ Billu and Sunil Kumar (since convicted).

I have carefully perused and analysed the evidence on record.

On analysing the entire testimony of PW7 - prosecutrix, coupled with the Test Identification Parade (TIP) proceedings evidence of accused Krish Pal Ex. PX4 (colly.) and that of accused Kamal Das @ Pappu @ Bobi Ex. PX8 (colly.) as well as by the Test Identification Parade (TIP) proceedings of case property Ex. PW18/A to Ex. PW 18/D, it clearly indicates of the involvement of accused Krish Pal and accused Kamal Das @ Pappu @ Bobi in the instant case. From the perusal of Test Identification Parade (TIP) proceedings, Ex. PX4 and Ex. PX8 of both the accused Krish Pal and accused Kamal Das @ Pappu @ Bobi respectively, it is clearly indicated that both the said accused were produced in muffled faces at the time of the TIP proceedings but they refused to join the TIP proceedings despite warning by the Learned Concerned MM, who was conducting the TIP proceedings, stating that their photographs were taken by the Police. It is evident from the record 104 of 143 105 FIR No. 97/05 PS - Bawana that during the crossexamination of PW43 - SI Anwar Khan (who had arrested accused Krish Pal on 01/02/2012 in the instant case vide arrest memo Ex. PW43/A), accused Krish Pal neither voiced his concern nor raised any apprehension regarding his photograph having taken by the Police and for the said reason, he refused to join his TIP proceedings. He was the only competent witness who would have been fully capable of explaining correctly the factual situation. It is also evident from the record that PW45 - SI Randhir Singh who had arrested accused Kamal Das @ Pappu @ Bobi on 21/04/2012 in the instant case vide arrest memo Ex. PW45/B, was not crossexamined on behalf of accused Kamal Das @ Pappu @ Bobi despite grant of opportunity. Nor it was suggested to him by accused Kamal Das @ Pappu @ Bobi that since his photograph was taken by the Police for the said reason he refused to join his TIP proceedings. For such failure accused are to blame themselves and none else.

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 105 of 143 106 FIR No. 97/05 PS - Bawana of Delhi) 2011 VII AD (DELHI) 276).

Further, the case property ear ring Ex. P5, saree Ex. P2, of which the dacoity was committed from PW7 - prosecutrix at the time of the committal of the crime, were seized vide seizure memo Ex. PW26/A dated 14/04/2005 at the instance of accused Virender @ Billu (since convicted) and vide seizure memo Ex. PW26/G dated 21/04/2005 at the instance of accused Sunil Kumar (since convicted) respectively have been identified by PW7 - prosecutrix during the course of her examinationinchief and the saree Ex. P2 was also identified by PW7 - prosecutrix during the TIP of the case property. It clearly indicates the involvement of accused Krish Pal and accused Kamal Das @ Pappu @ Bobi in the commission of the crime alongwith Virender @ Billu (since convicted), accused Sunil Kumar (since convicted) and accused Raj Pal (since PO). PW7 - prosecutrix during her examinationinchief has also identified cloth piece wrapped by one of the assailants at the time of the incident Ex. P1, which was seized vide seizure memo Ex. PW26/H dated 21/04/2005 at the instance of accused Sunil (since convicted); one bed sheet Ex. P7, which was seized vide seizure memo Ex. PW26/J dated 106 of 143 107 FIR No. 97/05 PS - Bawana 21/04/2005 at the instance of accused Sunil (since convicted) and the plastic sheet Ex. P3 and cover of quilt Ex. P4 which were seized by the Police from the place of the incident vide seizure memo Ex. PW9/A dated 23/03/2005.

In view of above and in the circumstances, it does not lie in the mouth of accused Krish Pal and accused Kamal Das @ Pappu @ Bobi to utter that they have been arrested only on the disclosure statements of accused Virender @ Billu and Sunil Kumar (since convicted) and they (accused Krish Pal and Kamal Das @ Pappu @ Bobi) were not the particeps criminis in the commission of the crime.

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

28. Learned Counsel for accused Kamal Das @ Pappu @ Bobi submitted that IO has not made any public witness at the time of incident and not recovered any goods from the possession of accused Kamal Das while arresting the accused or confirming the victim's story. Learned 107 of 143 108 FIR No. 97/05 PS - Bawana Counsel further submitted that no recovery was effected from accused Kamal Das. Learned Counsel further submitted that IO has not even enquired any person in the incidental area. Learned Counsel for accused Krish Pal submitted that nothing was recovered from the possession of the accused. Learned Counsel for accused Krish Pal further submitted that no public witnesses were joined at the time of pointing out of the alleged place of incident.

I have carefully perused and analysed the evidence on record.

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.

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 108 of 143 109 FIR No. 97/05 PS - Bawana 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."

So far as the plea raised by the Learned Counsel for the accused that no any goods was recovered from the possession of accused Kamal Das @ Pappu @ Bobi while arresting the accused and that nothing was recovered from the possession of accused Krish Pal is concerned, undisputably, both the accused Kamal Das @ Pappu @ Bobi and Krish Pal had absconded and were declared proclaimed offenders (POs) and accused Krish Pal could be arrested only on 21/08/2011 u/s 41.1(c) Cr.P.C. vide arrest memo Ex. PW31/A and was arrested in the instant case by PW43 - SI Anwar Khan on 01/02/2012 vide arrest memo Ex. PW43/A while accused Kamal Das @ Pappu @ Bobi could be arrested only on 19/04/2012 u/s 41.1(c) Cr.P.C. vide arrest memo Ex.

109 of 143 110 FIR No. 97/05 PS - Bawana PW36/A and was arrested in the instant case by PW45 - SI Randhir Singh on 21/04/2012 vide arrest memo Ex. PW45/B. There is nothing in the crossexamination of PW43 - SI Anwar Khan so as to impeach his creditworthiness. Despite grant of opportunity PW45 - SI Randhir Singh was not crossexamined on behalf of accused Krish Pal and Kamal Das @ Pappu @ Bobi. The evidence regarding the Test Identification Parade (TIP) of the case property which was recovered at the instance of accused Virender @ Billu and Sunil Kumar (since convicted) associates of accused Krish Pal and Kamal Das @ Pappu @ Bobi as well as the case property which was seized by the Police from the place of incident has already been discussed hereinbefore and the case property has also been duly identified by PW7 - prosecutrix during her examinationin chief as discussed hereinbefore.

The testimony of PW7 - prosecutrix has been reproduced, analysed and discussed hereinbefore. At the cost of repetition, the testimony of PW7 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing 110 of 143 111 FIR No. 97/05 PS - Bawana in her statement to suggest that she had any animus against the accused Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

During his crossexamination PW29 - ASI Babu Lal has deposed that : "...I did not record any statement of the public persons. Vol. Inquired them, however I recorded the statement of complainant. I cannot tell the names of all the public persons except of Yogender..."

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.

It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.

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 111 of 143 112 FIR No. 97/05 PS - Bawana 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).

Moreover, nonrecovery of the weapons used at the time of committal of the offence by accused Krish Pal and Kamal Das @ Pappu @ Bobi and his associates does not falsify the case of prosecution which is otherwise proved on record by clear, cogent and convincing evidence. In case 'Lakhan Sao Vs. State of Bihar & Anr.', (2000) 9 SCC 82 it was held that the nonrecovery of the pistol or spent cartridge does not detract from the case of the prosecution where the direct evidence is acceptable.

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

112 of 143 113 FIR No. 97/05 PS - Bawana

29. Learned Counsel for accused submitted that the prosecutrix has given the statement before the Court as per the direction of the Police officials/IO, therefore, the statement given by the prosecutrix is an afterthought and manipulated one and has been given with malafide intention to falsely implicate the accused Kamal Das.

I have carefully perused and analysed the evidence on record.

The testimony of PW7 - prosecutrix has been reproduced, analysed and discussed hereinbefore. At the cost of repetition, the testimony of PW7 - prosecutrix has been found to be clear, natural, cogent, convincing 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 Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

At the cost of repetition, on analysing the entire testimony of 113 of 143 114 FIR No. 97/05 PS - Bawana PW7 - prosecutrix, it transpires that she has described the scenario implicating the accused Krish Pal and Kamal Das @ Pappu @ Bobi [alongwith accused Virender @ Billu and Sunil Kumar (since convicted) and accused Raj Pal (since PO)] to be the author of the crime, of the committal of dacoity, use of deadly weapon i.e pistols at the time of committing of the dacoity and at the time of the committal of the gang rape upon her. During her examinationinchief, she correctly identified accused Kamal Das and Krish Pal as the assailants who also committed the rape upon her, after pointing out towards them. The accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. During her crossexamination, she specifically negated the suggestions that the accused are innocent or that she is wrongly identifying the accused only on the basis of suspicion or on the asking of the Police officers or that she is deposing falsely. The testimony of PW7 - prosecutrix is also found to be corroborated by Test Identification Parade (TIP) proceedings evidence of accused Krish Pal Ex. PX4 (colly.) and that of accused Kamal Das @ Pappu @ Bobi Ex. PX8 (colly.) as well as by the Test Identification Parade (TIP) proceedings of case property Ex. PW18/A to Ex. PW 18/D. Her 114 of 143 115 FIR No. 97/05 PS - Bawana testimony is also found to be corroborated by PW3 - Sh. Ram Prasad Adhikari, her husband, an eye witness and victim himself during the course of the commission of the crime and he has also correctly identified accused Krish Pal and accused Kamal Das @ Pappu @ Bobi. During his crossexamination, he negated the suggestions that both the accused had been shown to him by the Police officials or that he had identified both the accused namely Kamal Das and Krish Pal after they were pointed out to him by the Police officers in the morning.

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

30. Learned Counsel for accused submitted that the medical examination of PW7 - prosecutrix does not prove that the rape was committed upon her.

I have carefully perused and analysed the evidence on record.

It is a settled principle that statements of the witnesses 115 of 143 116 FIR No. 97/05 PS - Bawana 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 medical and gynaecological evidence of PW7 - prosecutrix as well as the DNA Finger Printing Evidence has been reproduced, discussed and analysed hereinbefore.

The testimony of PW7 - prosecutrix has been reproduced, analysed and discussed hereinbefore. At the cost of repetition, the testimony of PW7 - prosecutrix has been found to be clear, natural, cogent, convincing 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.

It is not made clear by the Learned Counsel for the accused as to what they intend to convey by raising the said plea. Nor they have specified as to how and in what manner the medical examination of PW7

- prosecutrix does not prove that the rape was committed upon her.

116 of 143 117 FIR No. 97/05 PS - Bawana At the cost of repetition, PW4 - Dr. N. S. Khurana in his examinationinchief has deposed which is reproduced and reads and under : "I have been instructed to depose on behalf of Dr. Jay Kumar who is no longer working at M. B. Hospital being acquainted with his handwriting and signature. Dr. Jay Kumar had earlier deposed in this case on 19/05/2007.

As per the record on 19/03/2005, prosecutrix (name withheld) W/o Ram Prashad, 22 years female was brought to the Hospital at 10:15 a.m. by PCR Van InCharge HC Harbir Singh with alleged H/o sexual assault, as told by the patient on the night of 18/03/2005. There was no history of loss of consciousness, vomiting or seizures. Local examination found no visible external injuries. Dr. Jay Kumar prepared MLC already Ex. PW4/A. It is in his (Dr. Jay Kumar) handwriting and bears his (Dr. Jay Kumar) signature at point 'A'. The patient was referred to Gynae Emergency for detailed examination and expert opinion and further management."

Despite grant of opportunity, PW4 - Dr. N. S.Khurana was not crossexamined on behalf of accused Krish Pal and Kamal Das.

At the cost of repetition, PW41 - Dr. Saroj Aggarwal in her examinationinchief has deposed which is reproduced and reads and 117 of 143 118 FIR No. 97/05 PS - Bawana under : "I have seen MLC already Ex. PW4/A. The Gynae notes on this MLC are already Ex. PW5/A. Court observations : previously proved by Dr. Sunita Seth. These are in the handwriting of Dr. Rashmi. I am conversant with the handwriting and signature of Dr. Rashmi as I have seen her writing and signing during the course of duties at Hospital. Her signatures appears at point 'B'. As per the Gynae notes, patient alleged history of sexual assault last night by few persons. She is para one, live one, delivery two months back. She is lactational amenorrhea. Patient was conscious. General condition was fare (fair). Vitals were stable. Per abdomen soft. No external injury found over cheek, neck, breast or private parts. One scratch mark linear approximately 56 cm, 10 cm above left wrist joint was found. No bleeding PV was found. Episiotomy wound healthy, slight discharge PV present.

Per vaginal examination, hymen was found ruptured, uterus normal size, anteverted mobile, fornices free. Two vaginal smear slides taken. Pubic hair taken. Cloth of the victim packed, sealed and handed over to IO. She was advised antibiotics, urine for pregnancy test and report to the Gynae OPD. I can elucidate on the medical aspect of this case."

During her crossexamination, PW41 - Dr. Saroj Agarwal has deposed that, "It is correct that the patient was not examined in my presence. It is correct that the MLC was not prepared in my presence."

118 of 143 119 FIR No. 97/05 PS - Bawana There is nothing in the crossexamination of PW41 - Dr. Saroj Agarwal so as to impeach her creditworthiness.

As regards non finding of any injuries on the body parts of the prosecutrix is concerned, the absence of signs 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).

Explanation appended to Section - 375 IPC clearly 119 of 143 120 FIR No. 97/05 PS - Bawana provides penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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.

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 the testimony of PW7 - prosecutrix is also found to be corroborated as to what she stated at the first available opportunity shortly after the incident in the alleged medical history which she had given to the Doctor at the time of her medical examination conducted on 19/03/2005 at 10:45 a.m. at M. B. 120 of 143 121 FIR No. 97/05 PS - Bawana Hospital vide MLC Ex. PW4/A which is to the effect, "Alleged H/o sexual assault, as told by the patient on the night of 18/03/2005" as well as by the alleged medical history which she had given at the time of her gynaecological examination on 19/03/2005, which as per gynae notes Ex. PW5/A, is to the effect, "According to patient's statement, Alleged H/o sexual assault last night by few persons."

It is evident from the record that PW7 - prosecutrix was not crossexamined by the accused on the aspect of alleged medical history given by her to the Doctor at the time of her medical and gynecological examination vide MLC Ex. PW4/A and Gynae notes Ex. PW5/A, as reproduced hereinabove.

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).

At the cost of repetition, on analysing the testimony of PW7 121 of 143 122 FIR No. 97/05 PS - Bawana

- Prosecutrix in the light of medical and gynaecological evidence vide MLC Ex. PW4/A and Gynae notes Ex. PW5/A on the MLC Ex. PW4/A of the prosecutrix, DNA Report Ex. PW13/S together with the MLC of accused Krish Pal Ex PW39/A and MLC of accused Kamal Das @ Pappu Ex. PW40/A, 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 of semen, 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 both the accused Krish Pal and Kamal Das @ Pappu @ Bobi with PW7 - Prosecutrix without her consent.

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

31. Learned Counsel for accused Krish Pal submitted that accused are innocent and have been falsely implicated in the case. The testimony of PW3 - Ram Prashad Adhikari and PW7 - prosecutrix 122 of 143 123 FIR No. 97/05 PS - Bawana require cautious scrutiny and analysis of surrounding circumstances as their evidence qua the present accused Krish Pal and Kamal Das was recorded after 07 years of incident. Learned Counsel further submitted that statements of PW3 - Ram Prashad Adhikari and PW7 - prosecutrix are rather vague in nature, it seems they are deposing on tutoring, without giving exact details of incident and role of the accused in it, they simply said that the accused was among assailants.

I have carefully perused and analysed the evidence on record.

The testimonies of PW7 - prosecutrix and PW3 - Sh. Ram Prasad Adhikari, her husband, eye witness and victim himself during the course of the commission of the crime have been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimonies of PW7 - prosecutrix and PW3 - Sh. Ram Prasad Adhikari on careful perusal and meticulous analysis have been found to be clear, natural, cogent, convincing, inspiring confidence and having a ring of truth. The version of the prosecutrix on the core spectrum of the crime has remained intact. There is nothing in their statements to suggest that they 123 of 143 124 FIR No. 97/05 PS - Bawana had any animus against the accused Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

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

32. Learned Counsel for accused submitted that during his testimony PW3 - Ram Prashad Adhikari stated that 1012 men entered into Temple, whereas PW7 - prosecutrix states only 45 persons. Learned Counsel for accused further submitted that PW7 - prosecutrix in her examinationinchief said that she became unconscious after the incident and regained her consciousness in the Hospital and PW3 - Ram Prashad Adhikari states that his wife was unconscious when she was taken to Hospital and she gained her consciousness after one or two days, whereas, MLC of PW7 - prosecutrix shows that she was conscious and oriented when she was brought to the Hospital. This fact itself diminishes their credibility.

I have carefully perused and analysed the evidence on 124 of 143 125 FIR No. 97/05 PS - Bawana record.

On careful perusal and analysis of the entire evidence on the record, the said discrepancies regarding which the plea has been raised on the aspects that, as to the number of persons entered into the Temple, as to when and after how much time, PW7 - prosecutrix regained consciousness do not reflect upon the substantive evidence and the probative value of the statements of PW3 - Ram Prasad Adhikari and PW7 - prosecutrix made on material and relevant aspects. Nor do they vitiate or negate the case of the prosecution which is otherwise proved on the record by clear, cogent and convincing evidence. The version of PW7 - prosecutrix on the core spectrum of crime has remained intact. Moreover, the said discrepancies are merely the inconsistencies on the fringe without materially effecting the credibility of the evidence. Nor do they dislodge the substratum of the prosecution case and despite their existence the clear, cogent, convincing, reliable and trustworthy evidence proved on record bears out the case of the prosecution. PW7 - prosecutrix and PW3 - Ram Prasad Adhikari, her husband when were been overtaken by the events, having an element of surprise have deposed about the facts regarding which the plea has been raised, as to 125 of 143 126 FIR No. 97/05 PS - Bawana what they could perceive, observe and their mental faculties could absorb. 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, retention and reproduction differs with individuals.

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).

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 126 of 143 127 FIR No. 97/05 PS - Bawana 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 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.

127 of 143 128 FIR No. 97/05 PS - Bawana 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 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 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.

The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are 128 of 143 129 FIR No. 97/05 PS - Bawana 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.

In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".

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

129 of 143 130 FIR No. 97/05 PS - Bawana

33. Learned Counsel for accused submitted that conduct of PW3 - Ram Prashad Adhikari, was suspicious after the incident, when in the morning inspite of making call to Police he opted to intimate the Owner of the Temple.

I have carefully perused and analysed the evidence on record.

The testimony of PW3 - Ram Prasad Adhikari has been reproduced, analysed and discussed hereinbefore. At the cost of repetition, the testimony of PW3 - Ram Prasad Adhikari has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in his statement to suggest that he had any animus against the accused Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

It is well settled that different persons act and react differently in a given situation.

So far as the plea raised by the Learned Counsel for the accused that conduct of PW3 - Ram Prashad Adhikari, was suspicious 130 of 143 131 FIR No. 97/05 PS - Bawana after the incident, when in the morning inspite of making call to Police he opted to intimate the Owner of the Temple is concerned, it is evident from the record that during the crossexamination of PW3 - Ram Prasad Adhikari none of said accused voiced their concerns or raised their 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 failure to do so, accused are to blame themselves and none else.

PW3 - Ram Prasad Adhikari, who himself was the victim during the course of the commission of the crime and was working as a Priest (Pujari) at the Temple, the place of incident, opted to intimate the owner of the Temple instead of making the call to the Police and he did so as to what he perceived to be appropriate in the circumstances. The 131 of 143 132 FIR No. 97/05 PS - Bawana sight cannot be lost of the fact of the mind set of PW3 - Ram Prasad Adhikari who was overtaken by the events who besides himself being the sufferer, his wife was also a victim of sexual aggression of gang rape. In the circumstances, there is nothing suspicious in the conduct of PW3 - Ram Prasad Adhikari, for intimating the owner of the Temple instead of calling the Police. Nor does it falsify the case of the prosecution which is otherwise proved on 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.

34. Learned Counsel for accused submitted that the testimony of PW10 - Constable Dalbir Singh brings new fact on record which was not stated by PW3 - Ram Prashad Adhikari and PW7 - prosecutrix. He said during his crossexamination that Pandit Ji told him that the accused persons were outsiders and had covered their faces by clothes. He was intimated about the incident by PW3 - Ram Prashad Adhikari about the incident even prior to Police. Neither this fact came in the story of prosecution nor in the statements of star witnesses of prosecution. This 132 of 143 133 FIR No. 97/05 PS - Bawana shows deliberations and improvements in their testimonies on tutoring.

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 benefit they intend to reap by raising the said plea.

So far as the plea raised by the Learned Counsel for the accused that PW10 - Constable Dalbir Singh during his cross examination has stated that Pandit Ji told him that the accused persons were outsiders and had covered their faces by clothes and he was intimated about the incident by PW3 - Ram Prashad Adhikari about the incident even prior to Police, is concerned, it is evident from the record that during the crossexamination of PW29 - ACP Babu Lal, IO none of the said accused voiced their concerns 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 failure to do so, accused are to blame themselves and none else.

133 of 143 134 FIR No. 97/05 PS - Bawana 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.

35. Learned Counsel for accused submitted that Investigating Officer has also not taken interest to investigate the case fairly.

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 they intend to convey by raising the said plea. Nor they have specified as to how and in what manner the investigation has not been carried out fairly.

On careful perusal and analysis of the testimony of 29 134 of 143 135 FIR No. 97/05 PS - Bawana ACP Babu Lal, IO, the same is found to be a graphic description of the steps taken by him during the course of the investigation. His testimony is found to be clear, cogent, convincing and inspiring confidence. Inspite of his incisive crossexamination, nothing material has been brought out so as to impeach his creditworthiness. There is nothing in his statement to suggest that he had any animus against the accused Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

At the cost of repetition, PW29 ACP Babu Lal who is the initial investigating officer (IO) of the case has deposed that on 19/03/2005, he was posted as SHO PS - Bawana. On that day, DD No. 5A was recorded at PS and it was marked to SI Ajit Singh, who left the PS with Constable Ayub Khan, photocopy of the DD is at point 'X' on already Ex. PW2/B. He also left with the staff for the inquiry of the information and they reached at Sankat Mochan Sidh Hanuman Mandir, Begumpur, Barwala Road, near School. ASI Ajit Singh and Constable Ayub were already present there. Complainant Ram Prasad Adhikari was also present there and he came to know that the wife of Ram Prasad Adhikari namely prosecutrix (name withheld) was removed to MB 135 of 143 136 FIR No. 97/05 PS - Bawana Hospital, Pooth Khurd by PCR. He inspected the scene of crime and found that one broken lock was lying near the temple and in the adjoining room, the household articles were scattered. In the meantime, DCP, ACP, members of the Crime Team and the members of the Crime Women Cell, Nanak Pura also reached there. He recorded the statement of complainant Ram Prasad Adhikari vide already Ex. PW3/A attested by him at point 'B'. He prepared rukka already Ex. PW29/A bearing his signature at point 'A' and handed over to Constable Ayub for registration of the FIR. He left the spot and went to PS. Members of the Crime Team inspected the scene of crime and took the photographs of the scene of crime and they submitted their report vide already Ex. PW11/A. He lifted the broken lock from the spot and taken into possession vide memo already Ex. PW29/B bearing his signature at point 'A'. He also entered into the residential room and lifted a button of black colour having four holes and its back was of chitkawara (black and white). The button was turned into a match box and a parcel was prepared with the help of the cloth and sealed with the seal of 'BL'. It was taken into possession vide memo already Ex. PW29/C bearing his signature at point 'A'. He also lifted a shawl of maroon colour having some stains looking like the 136 of 143 137 FIR No. 97/05 PS - Bawana semen stains. It was also turned into a cloth parcel and sealed with the seal of 'BL' and was taken into possession vide memo already Ex. PW29/D bearing his signature at point 'A'. In the meantime, Constable Ayub returned back at the spot and handed over to him the original rukka and copy of FIR. He directed SI Ajit Singh to reach MB Hospital and he made inquiries at the spot. After which he also reached at MB Hospital and collected the MLC of prosecutrix (name withheld) W/o Ram Prasad. SI Ajit Singh handed over three sealed parcels with sample seal containing the articles seized by the Doctor which he seized vide Ex. PW29/E bearing his signature at point 'A'. He also made inquiries from the prosecutrix (name withheld) in the Hospital. At that time, W/SI Parvati was also present near prosecutrix (name withheld). Since prosecutrix (name withheld) was not well conversant with the language of Hindi and she used the Nepali language, hence whatever she told was translated by her husband Ram Prasad and then he (PW29) recorded her statement u/s 161 Cr.P.C. He tried to search for the accused persons. As and when the parcels were seized by him, same were deposited by him with the MHC(M) simultaneously. On 19/03/2005, he also prepared site plan at the instance of Ram Prasad vide already Ex. PW29/F bearing his 137 of 143 138 FIR No. 97/05 PS - Bawana signature at point 'A'. On 22/03/2005, he sent four sealed parcels with sample seal to FSL through Constable Shambhu for their examination. On 23/03/2005, Director FSL visited the scene of crime and he inspected the scene of crime. He directed him (PW29) to lift one plastic sheet and a quilt cover. He lifted the same and turned the same into a cloth parcel and sealed with the seal of 'BL'. It was taken into possession vide memo already Ex. PW9/A bearing his signature at point 'C'. During the investigation, he recorded the statement of witnesses and he suspected four boys namely Rajbir, Sukhbir, Sanjeev and Sonu. On the directions of Senior officers, all these four boys were taken to FSL alongwith prosecutrix (name withheld) and Ram Prasad for the purpose of DNA examination. Their forms were filled up at FSL vide memo already Ex. PW13/M, PW13/N, PW13/O, PW13/P, PW13/Q and PW13/R all bearing his signature at point 'B'. The officials of FSL took the blood samples of the suspects as well the complainant and his wife/prosecutrix (name withheld). He (PW29) tried to search the accused persons but could not traced them, the investigation of this case was transferred to Operation Cell, N/W District and the investigations thereafter conducted by Inspector Gurmeet Singh. As per the record, it was Inspector Gurmeet 138 of 143 139 FIR No. 97/05 PS - Bawana Singh who had apprehended and arrested the accused Virender @ Billu and accused Sunil Kumar (since convicted) vide proceedings already Ex. PW26/A and already Ex. PE26/C. Their personal search was conducted vide already Ex. PW26/B and already Ex. PW26/D. Inspector Gurmeet Singh also recorded their disclosure statements. Disclosure statement of accused Virender (since convicted) is already Ex. PW26/E and disclosure statement of accused Sunil (since convicted) is already Ex. PW26/F. Thereafter both the accused were produced before the Illaka Magistrate in muffled faces for their Judicial TIP where they refused to participate in the same. He also identified one broken lock Ex. PW29/1 (Also as Ex. P6 in the evidence of PW7 - prosecutrix) plastic sheet and quilt cover Ex. P3 and Ex. P4 respectively and one maroon colour shawl Ex. 29/2.

At the cost of repetition, undisputably, both the accused Kamal Das @ Pappu @ Bobi and Krish Pal had absconded and were declared proclaimed offenders (POs) and accused Krish Pal could be arrested only on 21/08/2011 u/s 41.1(c) Cr.P.C. vide arrest memo Ex. PW31/A and was arrested in the instant case by PW43 - SI Anwar Khan 139 of 143 140 FIR No. 97/05 PS - Bawana on 01/02/2012 vide arrest memo Ex. PW43/A while accused Kamal Das @ Pappu @ Bobi could be arrested only on 19/04/2012 u/s 41.1(c) Cr.P.C. vide arrest memo Ex. PW36/A and was arrested in the instant case by PW45 - SI Randhir Singh on 21/04/2012 vide arrest memo Ex. PW45/B. There is nothing in the crossexamination of PW43 - SI Anwar Khan so as to impeach his creditworthiness. Despite grant of opportunity PW45 - SI Randhir Singh was not crossexamined on behalf of accused Krish Pal and Kamal Das @ Pappu @ Bobi. On careful perusal and analysis the testimonies of PW43 - SI Anwar Khan and PW45 - SI Randhir Singh are found to be clear, cogent and inspiring confidence. There is nothing in their statements to suggest that they had any animus against accused Krish Pal and Kamal Das @ Pappu @ Bobi to falsely implicate them in the case.

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

36. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that 140 of 143 141 FIR No. 97/05 PS - Bawana on the intervening night of 1819/03/2005, at about 1:00 a.m. at Sankat Mochan Siddh Hanuman Mandir, Begum Pur, Barwala Road, near School, accused Krish Pal and Kamal Das @ Pappu @ Bobi conjointly alongwith coaccused Virender @ Billu, Sunil Kumar (both since convicted) and Raj Pal (since PO), numbering five, armed with pistols, gun and swords, pulled the lock of hair tail (Chhoti) of PW3 - Ram Prasad Adhikari and demanded Rs. One Lac from him and on being told by him that he was not having any money, thereafter, they broke the lock (Ex. P6) of the gate and came inside the Temple and started beating him and tied his hands and legs with ropes and took him to another room in the back side of the Temple and then searched inside the Temple about the money after taking the key from under his (PW3 - Ram Prasad Adhikari) pillow and committed dacoity of pressure cooker, other utensils and clothes belonging to PW3 - Ram Prashad Adhikari, the Priest (Pujari) of the Temple by putting him in fear of instant death and that they on the pointing of pistols, a deadly weapon also committed dacoity of gold earrings (Ex. P5), gold nose pin, silver Pajeb and Saree (Ex. P2) from PW7 - prosecutrix, wife of PW3 - Ram Prasad Adhikari, the Priest of the Temple, after putting her in fear of instant death and that 141 of 143 142 FIR No. 97/05 PS - Bawana they also committed gang rape upon PW7 - prosecutrix without her consent one by one on the pointing of pistols after tearing her clothes.

I accordingly hold accused Krish Pal and Kamal Das @ Pappu @ Bobi guilty for the offences punishable u/s 395/397/376(2)

(g) IPC and convict them thereunder.

37. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Krish Pal and Kamal Das @ Pappu @ Bobi in the commission of the offences u/s 395/397/376(2)(g) 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 Krish Pal and Kamal Das @ Pappu @ Bobi beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Krish Pal and Kamal Das @ Pappu @ Bobi guilty for the offences punishable u/s 395/397/376(2)(g) IPC and convict them thereunder.

Announced in the open Court (MAHESH CHANDER GUPTA) on 22nd Day of July, 2014 Additional Sessions Judge Special Fast Track Court 142 of 143 143 FIR No. 97/05 PS - Bawana (N/W District), Rohini, Delhi 143 of 143

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State vs . 1. Krish Pal on 22 July, 2014