Delhi District Court
Sc No.35/14 State vs . Mahender @ Ganja Etc. 1/69 on 10 June, 2016
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case ID 02401R0078922014
Sessions Case No. 35/14
Assigned to Sessions. 15.05.2014
Arguments heard on 25.05.2016
Date of Judgment 06.06.2016
FIR No. 17/14
State V 1. Mahender @ Ganja S/o Sh. Sat Narayan
R/o. Vegabound New Delhi Railway Station,
Delhi.
Permanent Address: VillageHasanpur
Kasar, PSSultanpur Ghosh, Distt. Fatehpur,
U.P. (In JC)
2.Mohd. Raja s/o Mohd. Tahir, R/o.
Vegabound New Delhi Railway Station,
Delhi. (In JC)
3.Raju Bhajje @ Raju Bhagat S/o Bhagat
Singh, R/o. Vegabound New Delhi Railway
Station, Delhi.(In JC)
4.Arjun S/o. Lt. Hari Om R/o. Vegabound
New Delhi Railway Station, Delhi.(In JC)
5. Raju Chhaka S/o. Late Om Prakash R/o.
Vegabound New Delhi Railway Station,
Delhi.(In JC)
6. Shyam Lal @ Bhajni S/o. Dukhi Ram,
Vegabound New Delhi Railway Station,
Delhi.
Permanent Address: Vill. Bhagyania Nagar,
SC No.35/14 State Vs. Mahender @ Ganja etc. 1/69
Case ID 02401R0078922014
PS Uska Bazar, Distt. Basti, U.P.
(Proceedings against this accused has been
abated vide order dated 26.02.2016)
Police Station Paharganj
Under Section 376D/395/397/366/342/412/506/34IPC and
25 Arms Act.
JUDGMENT
1. In the present case Station House Officer of Police Station Pahar Ganj had filed a challan vide FIR No. 17/2014 dated 15.01.2014 u/s 376D/395/397/365/366/342/412/506 IPC and 25/27/54/59 Arms Act for the prosecution of accused persons namely Mahender @ Ganja, Mohd. Raja, Raju Bhajje @ Raju Bhagat, Arjun, Raju Chhaka and Shyam Lal @ Bhajni in the court of ld. Metropolitan Magistrate. After compliance of the requirement of section 207 Cr.P.C. the case was sent to this court being the designated Fast Tract Court for trial of the offences of sexual assault against the woman through the Office of Ld. District & Sessions Judge (HQ), Tis Hazari Courts, Delhi. Keeping in view of section 228 (A) IPC and directions of Supreme court in "State of Karnataka Vs. Puttraj 2004 (1) SCC 475" and "Om Prakash Vs. State of U.P. 2006, CRLJ. 2913", the name of prosecutrix is not being given in the judgment.
BRIEF FACTS OF THE CASE
2. Briefly stated facts of the case as reflected from the chargesheet are that on 14.01.2014, S.I. Neeraj Kumar informed to Police station Nabi Karim through telephone that a lady from Denmark, who has stayed in Hotel Amax Inn, 8145/6, Aara Kasha Road, Nabi Karim, had informed that today i.e. on 14.01.2014 at State Entry Road, Near New Delhi Railway Station, near copper metal idol of Hindu Goddess, eight boys had raped upon her and snatched her luggage. This information was recorded by DO/HC Swatantra Kumar vide DD No.25A and same was assigned to SI Anand. Thereafter, SI Anand along with HC Dayanand, 308/C and W/Ct. Mamta, 2268/C left for Hotel Amax Inn and W/SI was SC No.35/14 State Vs. Mahender @ Ganja etc. 2/69 informed on her mobile phone No.9868836342 to reach at Amax Inn and SHO Inspector Sukhdev Meena was also informed. On reaching the spot, S.I. Neeraj Kumar along with prosecturix R/o Copenhagen, Denmark met him and complainant had given a written complaint Ex.PW4/A wherein it is stated that she was walking alonedown State Entry Road from Cannought Circle in direction of Railway Station when she reached the end of State Entry Road, the road was found closed. She asked an unknown young man of about 18 years if she could go that way through deserted area with a statue of a Hindu God in bronze. The young man replied in affirmative & then 8 men ran out from the bushes behind the statue of Hindu God & took her money, cell phone, Ipod, watch, book, glasses (cash750 E (Euro) + 3000 rupees). Then they hit her and all of them raped her, some of them raped twice. They threatened her to kill and put long knife at her throat & hit her very hard at her face & body. After about 5 hours they let her to go. She returned Amax Inn, informed police. Police reached and recorded her statement upon which S.I. Anand had made endorsement Ex.PW24/A to get the FIR registered for offence u/s 376D/397 IPC through HC Swatanter Kumar. Complainant/prosecutrix refused to get herself medically examined in India and she left for Denmark on 15.01.2014. Accordingly, FIR Ex.PW1/B was registered.
3. During the course of investigation, accused persons namely Mahender @ Ganja, Mohd. Raja, Raja Chhakka, Raju Bhajje @ Raju Bhagat, Arjun, Shyam Lal @ Bhajni were arrested and two juveniles namely Mohd. Chand and Uved Ullah were also apprehended. Chargesheet was prepared and filed against all the accused persons accordingly for commission of offences punishable U/ss 376 D/395/397/366/34/342/34/506/34/412 IPC and 25/27 of Arms Act.
CHARGE:
4. On the basis of material available on record, Ld. Predecessor of this court vide order dated 25.11.2014 has framed charges u/s 366/34, 342/34, 395/376D/506/34 IPC against accused persons namely Mahender @ Ganja, Mohd. Raja, Raju Bhajje @ Raju Bhagat, Arjun, Raju Chhaka and Shyam Lal @ Bhajni, charge u/s 25 Arms Act was also framed against SC No.35/14 State Vs. Mahender @ Ganja etc. 3/69 accused Mahender @ Ganja, charge u/s 397/412 IPC was also framed against accused Arjun and charge u/s 412 IPC was also framed against accused Raju Chhaka to which accused did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
5. In order to prove its case prosecution examined 28 witnesses namely PW1 HC/DO Swatantra Kumar, PW2 Shivji Singh, PW3 Sh. Anil Kumar, PW4 Sh. Kuldeep Singh, PW5 SI Pankaj, PW6 Sh. A.K. Gupta, Director (Documents), PW7 Sh. Ajay Kumar Malik, PW8 Insp. Mahesh Kumar, Draftsman, PW9 SI Saroj Tiwari, PW10 ASI Harpal Singh, PW11 SI Vishnu Dutt, PW12 Prosecutrix, PW13 Mr. Rasmus Nielsen, Police Inspector (Investigation), Copenhagen Police, Denmark, PW14 Ms. Britta Almfort, PW15 HC Satender Kumar, PW16 HC Ajay Kumar, PW17 Ct. Vijay Pal, PW18 Ct. Dharampal, PW19 SI Anand Singh, PW20 HC Jitender Kumar, PW21 HC Subhash Chand, PW22 HC Ashok, PW23 SI Neeraj Kumar, PW24 SI Pushpa, PW25 Sh. D.S. Paliwal, Sr. Scientific Assistant (Biology), PW26 Inspector Raj Kumar, PW27 HC Dayanand and PW28 Dr. Durgesh, Senior Medical Officer, Dr. RML Hospital, New Delhi (however, in terms of order dated 22.4.2016, testimony of PW28 is not being read herein).
6. PW1 HC Swatantra Kumar was working as Duty Officer who recorded DD No.25 A (Ex.PW1/A) and FIR (Ex.PW1/B). He also endorsed the FIR (Ex.PW1/C) and issued Certificate U/s 65B of Evidence Act (Ex.PW1/D).
7. PW2 Shivji Singh. This witness is a material being eye witness of the incident dated 14.01.2014. This witness corroborated the versio of the prosecution and deposed that he has been residing at the address of New Delhi for the last about 30 years and he is working as a gardener in the Indian Railways. He further testified that on 14.01.2014 at about 4:00 p.m. while he was going from the Railway Club to the nearby place in connection with his some personal work and he saw nine persons near the Mata Idol near SC No.35/14 State Vs. Mahender @ Ganja etc. 4/69 the park and they were inhaling "Sulochan". He identified all accused persons facing trial in this Court correctly by pointing out them individually as well as by addressing their names. He also deposed that all accused persons are known to him since their childhood as they are ruffians of the area and they reside and commit petty offences in the area.
8. This witness has further deposed that he returned some time between 6:00 P.M. to 7:00 P.M. and went to his room and was preparing his food and at that time, he heard a peculiar voice which appeared to be an alarm raised by a foreigner lady and on hearing this noise, he came out of his room and found that the alarm was coming from the side of Mata Idol and he went there and climbed on the heap of the earth as some construction was going on, he saw all the nine persons including the six accused persons, present today in the court (three are being tried by the JJB concerned) were sitting nearby a foreigner lady and accused Mahender @ Ganja was upon that lady and was committing rape upon her and all other accused persons were sitting surrounding the lady, accused Arjun was having a big knife in his hand and they saw him. Accused Arjun showed him the knife, which was with him and he threatened him by a gesture by showing the knife that he would kill him.
Being frightened, he returned to his room and he was very panic and perturbed due to above incident and he was thinking what should he do. This witness further deposed that he was tired also as on the previous night on the occasion of Lohri, the function went on upto 2:30 a.m. and he was awakened by that time and in the meantime he fell asleep.
9. PW2 has further deposed that at about 1:00 a.m. (of 15.01.2014), he found police officials outside his room and he mustered courage seeing the police officials and narrated the entire incident to the police and he showed the place of incident also to the police and police prepared the site plan at his instance. This witness has further deposed that his statement u/s 164 Cr. P.C. (Ex.PW2/A) was recorded by Ld. MM.
10. This witness has further deposed that on 28.01.2014, he had participated in Test Identification Parade before the Ld. MM and had identified the knife (Ex.PW2/P1) shown to him by accused Arjun on 14.01.2014. This witness also proved TIP SC No.35/14 State Vs. Mahender @ Ganja etc. 5/69 proceedings of the case property conducted by Sh. Ajay Kumar Malik, Ld. MM vide Ex.PW2/B and correctly identified the coloured photograph (Ex.PW2/C) of the victim with whom incident had occurred and whom he had seen at the time of incident.
11. This witness has been cross examined at length by Ld. Amicus Curiae for all the accused persons. In his cross examination, this witness admits that some digging work was going on near the place of occurrence at the time of incident in question. This witness has further deposed that the Mata idol is at a distance of 20 ft. from the Railway Officers club and safai karamchaaris remain present at the Railway Officers Club till about 5 PM and the officials of the Railway Officers Club remain on duty from 10 AM to 4 PM and at the time of incident, no guard was posted at Railway Officers Club. This witness admits that there are Ashoka trees and Palm (Khajoor) trees near the Mata Idol. This witness has denied to the suggestion that the children of the neighbourhood come to play in the area between State Entry Road, his room and the railway track or that the said area is lying vacant. This witness has deposed that he has seen accused persons right from their childhood. They used to roam around railway station and indulged in petty offences.
12. PW3 Sh. Anil Kumar is owner of Hotel Amex Inn and Hotel J.B.N. International. He deposed that he is the owner of two hotels namely Amex Inn and Hotel J.B.N. International situated at 8145/6 and 145/8 respectively in gali No.6, Aarakashan Road, Paharganj, Delhi and that on 01.01.2014 in his Hotel Amex Inn, one lady namely 'SS' from Denmark with her passport No.206614 924 had stayed in his hotel for two days and thereafter she went for a tour on 03.01.2014.
13. PW3 further deposed that Prosecutrix 'SS' again came to his other connected hotel namely J.B.N. International and was given room No.407 and that on14.01.2014 at about 2:30 PM, he received a call from his employee namely Kuldeep about the incident of rape and robbery having been committed on the on the lady (Prosecutrix) who was staying in room No.407 of his hotel, by 89 persons, He immediately informed at PS Nabi Karim about the incident and later went to his hotel. PW3 was not crossexamined by the SC No.35/14 State Vs. Mahender @ Ganja etc. 6/69 defence.
14. PW4 Sh. Kuldeep Singh is the employee of the hotel Amax Inn. He deposed that he has been working as Receptionist at Amax Inn hotel situated at 145/6, Gali No.6, Aarakashan Road, Paharganj, Delhi for the last 12 years and that Sh.Anil Kumar (PW3) is the owner of this hotel as well as of another connected hotel namely J.B.N. International. Both the said hotels are connected with a passage which is on the top floor and there is a common reception of both the hotels.
15. He further deposed that on 01.01.2014, one Danish lady namely 'SS' came to their hotel and on 03.01.2014 she left the hotel and went for a tour. She came back on 13.01.2014 and was given room No.407 in their connected hotel i.e. hotel J.B.N. International.
16. PW4 further deposed that on 14.01.2014 at about 9.30 AM, Prosecutrix 'SS' left from the hotel for roaming in Delhi and that he was on duty on the reception at that time. She returned to the hotel at about 8.358.40 PM. He was on duty at the reception even at that time. He noticed that when she returned to the hotel, her clothes were in torn condition and were also having dust/earth on them. He also noticed scratch marks on her face, hands and neck. She appeared to be extremely nervous. He also remember that while leaving the hotel in the morning, she was wearing slacks, but when she returned, she was wearing a loose lower [pyjama].
17. PW4 also deposed that she took the key of the room from reception and went to her room. At 9.15 PM, she came back to reception and at that time, one Canadian lady, who was also their guest, was present at the reception. Both the said ladies talked to each other for sometime. Thereafter, the Canadian lady told him that an incident of rape and robbery has been committed with Prosecutrix 'SS' and asked him to inform the police about it. Prosecutrix 'SS' also informed him that 89 persons had raped her at knife point and also robbed her of her belongings. She also informed him that those persons used to make her SC No.35/14 State Vs. Mahender @ Ganja etc. 7/69 inhale some substance from a piece of cloth and she used to become semiconscious. Upon learning about this incident, he immediately informed his employer Sh. Anil Kumar (PW3) and he called the police.
18. PW4 Kuldeep Singh further deposed that he tried to enquire about the place of incident from Prosecutrix 'SS', who told him that she saw a board of State Entry Road near the place of incident. She further stated that she would be able to pin point the place of incident, if map of area is shown to her. Thereafter, PW4 showed her the Delhi City Map and also showed him the location of place of incident of said map i.e. at a green patch near end of State Entry Road ending towards NDRS and that there was bronze idol of Hindu Goddess near the place of incident.
19. PW4 also deposed that Police came to the hotel and made enquiries from her. The lady refused to accompany the police for her medical examination. PW4 also offered her to take her to hospital, but she refused. Thereafter, the Prosecutrix 'SS' gave a written complaint to the police in his presence. PW4 also identified her handwriting and signatures on the said complaint as she had written it and signed it in his presence and proved the said complaint as Ex. PW4/A bearing the signatures of Prosecutrix 'SS' at point A.
20. PW4 proved the relevant entries in the hotel guest register with regard to the stay of the Prosecutrix 'SS' in his hotel. The said relevant entries are Ex. PW4/B [running into 03 pages].
21. PW4 also proved the Delhi City Map, which he had shown to the victim and where she had marked the location of place of incident in his presence in black ink as Ex. PW4/C and the location of the place of incident is encircled in red at point A.
22. PW4 further deposed regarding handing over to the police the DVD containing the CCTV footage of reception area of J.B.N. International hotel showing the presence of SC No.35/14 State Vs. Mahender @ Ganja etc. 8/69 victim while leaving the hotel and her coming back to hotel on 14.01.2014 vide seizure memo Ex. PW4/D bearing his signatures at point A.
23. PW4 also clearly identified the victim on seeing her photograph Ex. PW2/C placed on the court record and also identified the black colour lower/pyjama and multi colour floral print long top and one black colour jacket as the clothes which the victim was wearing when she returned to the hotel on 14.01.2014, when showed to him. The pyjama, top and jacket are Ex. PW4/P1 [colly].
24. PW4 also identified the said DVD, which he had handed over to the police. The said DVD make MOSERBAER containing two files was played in the court and was shown to him. On viewing the DVD recording dated 14.01.2014 from 9:25:57 hrs to 09:26:34 hrs, PW4 stated that the victim is visible in the said recording and can also be seeing wearing slacks. On playing the second file in the said DVD containing recording dated 14.01.2014 from 20:35:42 hrs to 20:36:18 hrs, the witness again identified the victim, who was visible in the recording wearing loose bottom (Pyjama).
25. PW5 SI Pankaj Kumar deposed regarding the inspection of the place of incident i.e. small garden in the ground of Railway Officers Club at State Entry Road New Delhi Railway Station between 01:00 AM to 04:00 AM on 15.01.2014 and proved his report to this effect as Ex.PW5/A and the photographs as Mark PW5/B1 to Mark PW5/B30.
26. PW6 Sh. A.K. Gupta, Director (Documents), Truth Lab, New Delhi. This witness is a expert witness, who exhibited his report Ex.PW6/C which is to the effect that the admitted handwriting of the Prosecutrix was found to be the same handwriting as the handwriting on the book of the Prosecutrix i.e. Lonely Planet, Delhi and the brown paper envelope of the Jain Book Agency.
27. As aforesaid, the Prosecutrix 'SS' also identified the said book Ex.PW6/B and the brown paper envelope Ex.PW6/A as belonging to her and containing her handwriting.
SC No.35/14 State Vs. Mahender @ Ganja etc. 9/69
28. PW7 Sh. Ajay Kumar Malik, learned MM, Delhi, deposed regarding recording of Statement of Sh. Shivji Singh under Section 164 Cr. PC on 27.01.2014 [Ex.PW2/A (Colly)].
29. PW7 also deposed regarding having conducted the TIP of the case property i.e. Knife having blade sharp of one feet length with brass handle in his chamber by PW2 Sh.Shivji Singh, who correctly identified the same. He recorded his statement separately and signed at portion A. The said proceedings are Ex.PW2/B.
30. PW8 Insp. Mahesh Kumar, Draftsman, deposed regarding having prepared the scaled site plan of the place of incident on 27.01.2014 and proved the same as Ex.PW8/A, bearing his signatures at point A.
31. PW9 SI Saroj Tiwari deposed regarding arrest of Accused Raju @ Bhajji S/o Bhagat Singh on 16.01.2014 at the instance of secret informer from the area of Hazrat Nizamuddin.
32. PW10 ASI Harpal Singh. This witness has joined the investigation of this case with IO/SI Anand Singh and HC Arvind, HC Yaad Ram were also present. This witness alongwith HC Arvind apprehended accused Mahdner @ Ganja present in the court today [correctly identified] whereas IO apprehended accused Mohd. Raza with the help of HC Yaad Ram and both were interrogated and thereafter arrested in this case and their personal search was conducted. This witness has proved arrest memo and personal search memo of accused Mahender@Ganja Ex. PW10/A and Ex. PW10/B respectively and arrest memo and personal search memo of accused Mohd. Raza is Ex. PW10/C and Ex. PW10/D respectively.
33. This witness has deposed that from the right pocket of wearing pant of accused Mahender @ Ganja one IPod and one ear plug lead was recovered and Rs. 800/ cash was recovered from upper pocket of his wearing shirt and one mobile phone make Nokia was SC No.35/14 State Vs. Mahender @ Ganja etc. 10/69 also recovered from accused Mahender @ Ganja and the recovered items from the possession of accused Mahender @ Ganja were converted into parcel and seals 'AS' was affixed thereon, was taken into police possession through seizure memo now vide Ex. PW10/E.
34. This witness has further deposed that on random search of accused Mohd. Raza, two currency notes of Rs. 500/ denomination i.e. Rs. 1000/ and one spectacles case of reddish colour [mehroon] having one black colour button for opening the said case was also recovered and the recovered items from the possession of accused Mohd. Raza were converted into parcel and seals 'AS' was affixed thereon, was taken into police possession through seizure memo now Ex. PW10/F.
35. In his presence, IO has prepared the pointing out memos, which are Ex. PW10/G [qua accused Mahender @ Ganja] and Ex. PW10/H [qua accused Mohd. Raza] and both the accused had made disclosure statement about the manner and their involvement in the case. This witness has proved disclosure statement of accused Mahender@ Ganja vide Ex PW10/I and disclosure statement of accused Mohd. Raza vide Ex. PW10/J and accused Mahender had also disclosed that he has purchased the aforesaid mobile phone recovered from his possession by using the robbed amount which had come in his share.
36. This witness further deposed that he has got medically examined accused persons from LHMC and the examining doctor handed over the exhibits collected during medical examination of above named accused persons in sealed condition alongwith sample seal and the same were seized vide seizure memo Ex. PW10/K and Ex. PW10/L.
37. This witness further deposed that on 17.01.2014 he alongwith Insp. S. D. Meena reached the court of Ld. ACMM Sh. Sudhanshu Kaushik and accused Raju @ Bhajji present today in court [correctly identified] was interrogated and arrested after permission from Ld. Court and he was arrested vide arrest memo Ex. PW10/M. In his presence, IO also recorded the disclosure statement given by accused Raju @ Bhajji and the same is SC No.35/14 State Vs. Mahender @ Ganja etc. 11/69 now Ex.PW10/N.
38. This witness further deposed that on 22.01.2014, as per instructions of SHO Insp. Raj Kumar, he collected 25 sealed parcels, sample seals, FSL forms from the MHC(M) through RC No.7/12/14, detail of the aforesaid things is mentioned therein, to deposit the same at FSL, Rohini, Delhi and he went to FSL, Rohini and deposited all these items there and returned the receiving copy of RC and receipt issued by FSL official in lieu of the above articles which he handed over to the MHC(M). This witness has correctly identified the case property.
39. PW11 SI Vishnu Dutt deposed regarding taking of one sealed envelope along with original complaint in the handwriting of the complainant/victim of this case and deposited the same in the Truth Lab at Safdarjung Enclave, New Delhi along with a letter from the SHO vide Road Certificate No.4/21. He also obtained the receipt in lieu of deposit of the above things and handed over the same to the MHC(M) thereafter.
40. PW12 Prosecutrix 'S.S', who is undoubtedly the most material witness of the Prosecution, was brought into witness box as PW12. She deposed that she came to India on 31.12.2013 from her country i.e. Denmark to visit the different parts of India. She stayed in hotel Amax Inn, Aarakashan Road, New Delhi and thereafter went to visit different places in India i.e. Udaipur, Pushkar, Jaipur etc. After visiting these places, she again came to Delhi on 13.01.2014 and stayed in the same hotel i.e. Amax Inn.
41. On 14.01.2014 at about 9:30 AM, she left hotel and visited National Museum, New Delhi. She deposed that she wanted to go back to her hotel but there was rush on the other roads so she decided to walk back to her hotel from State Entry Road as there was no rush on that road. She went straight and found the road closed. She asked a young man if she could go this way. He answered in affirmative and showed her directions. She deposed that she remember that there was a statue of Hindu Goddess near that spot. 08 persons hiding behind the bushes, came out from behind and they all caught hold of her from her SC No.35/14 State Vs. Mahender @ Ganja etc. 12/69 hands and legs. She tried to scream for help but those persons put piece of cloth on her mouth and did not allow her to raise an alarm. She also deposed that they had poured some sniffing glue on the said cloth and put the same on her mouth.
42. As per PW12 'S.S.', she was carrying a cloth bag of black colour containing one Apple IPhone, IPod, glasses with case, ear phone, guide book, some money in a small purse and some cosmetics. She was also having another small bag in which she was carrying her passport and money. PW12 also deposed that they took away her bags. She also brought her cloth back with her to the court during her testimony and it was noticed on seeing the said cloth bag that the handle of the bag was torn.
43. PW12 further deposed that those persons took away all her articles except her passport, visa card and black cloth bag which she produced in the court. They assaulted her on her face and also on other parts of the body. She also deposed that one of them was having a very big knife and showed the same and put it on her neck and they were saying that they would kill her if she shouted. They were also saying 'Fuck Fuck Fuck'.
44. In the course of her deposition PW12 also stated that she requested the assailants not to rape her stating that she was suffering from AIDS. However, they brought condoms also and some of them used condoms also while raping her. They forcefully raped her despite her best efforts to rescue herself. She had put her both hands over her face as they were beating her also, during the sexual assault. She deposed that the incident continued for about five hours but she is not ascertained about the time as they had taken away her wrist watch also.
45. As per PW12, she was carrying approximately 750 Euros and 3000 INR, which were also taken away by the assailants. She deposed that they ripped off her dress and gave her one trouser after the incident. She wore the same and returned to the hotel. One Canadian lady helped her in calling the police. The complaint Ex.PW4/A, which is in her handwriting bears her signatures at point 'A'.
SC No.35/14 State Vs. Mahender @ Ganja etc. 13/69
46. PW12 further deposed that she informed the police about the exact place of incident with the help of a map of Delhi. She did not get herself medically examined despite the request made by the police officials as she had to return to Denmark on the next day and her flight was at about 8 AM on the next morning. After reaching Denmark, she was medically examined and was also photographed. The said photographs are Ex.PW12/A 1 to Ex.PW12/A10. She also identified the photographs Mark PW5/B1 to Mark PW5/B30 (later exhibited as Ex.PW16/B1 to Ex.PW16/B30) and identified the same to be the photographs of the place of incident and the nearby area.
47. This witness was cross examined by Ld. Special PP for the State on fact of her wearing clothes at the time incident, fact of knife and fact of identity of accused persons. In the course of her crossexamination, the prosecution put to her one black colour lower pyzama, one white colour net inner/top, one multi colour floral print long top in torn condition, one black colour full sleeve jacket, one black inner top and on seeing the said clothing, the witness stated that except the black colour pyzama all her clothing which she was wearing at the time of the incident and black colour pyzama was given to her by the assailants. The said clothing are Ex.PW4/P1 (Colly.).
48. In the course of her testimony, PW12 also identified torn pieces of cloth and one torn panty, stating that it is the part of the same dress which she was wearing at the time of the incident. The said articles are Ex.PW12/P5 and Ex.PW12/P6 respectively. The torn piece of cloth Ex.PW12/P5 was found to be similar torn portion of the dress i.e. multi colour floral long top, which was earlier part of Ex.PW4/P1 (Colly.).
49. PW12 further identified the IPod, one mobile phone make Nokia blackk colour, ear phones and Rs.800/ in denomination of one currency note of Rs.500/ and three currency notes of Rs.100/ each as belonging to her. She also identified the IPhone when shown to her and stated that it belongs to her. The said is Ex.PW12/P3.
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50. Significantly, in the course of trial, one spectacles case Ex.PW12/P4 and two currency notes of Rs.500/ were also put to the witness and she identified the same to be of her.
51. The prosecution also put one knife to the witness in the course of her testimony in court. On seeing the knife having brass handle, the Prosecutrix PW12 stated that she is not certain if the same knife was used by the offenders. She further stated that she had only seen the front portion i.e. blade of the knife and that the knife used by the offender was similar to this knife as it was also a long knife.
52. PW12 further identified her book of 'Lonely Planet' kept in a brown paper bag of Jain Book Agency, which was shown to her during the course of trial. The brown paper envelope and book are Ex.PW6/A and Ex.PW6/B respectively. She further added that the said guide book of Delhi bears her handwriting on a paper slip which is pasted on the inner side of the cover as well as on page No.3 of the book. She also stated that the brown paper bag of Jain Book Agency bears some numbers which are in her handwriting.
53. Prosecutrix/PW12 on seeing the Accused persons in the court clearly pointed out towards Accused Raju S/o Om Prakash, Accused Arjun S/o Hari Om, Accused Raju S/o Bhagat Singh and Accused Mahender @ Ganja and deposed that she is certain that the above named accused had committed rape upon her on the alleged date of incident and in the above stated manner. Initially, she also added with certainty that accused Raju S/o Bhagat Singh was also one of the accused. However at later stage in her examination, she again stated that she is not 100% sure if the Accused Raju S/o Bhagat Singh was also one of the offenders or not due to lapse of time.
54. PW12 further added that she is not certain if the other two accused present in the court i.e. Accused Mohd.Raja and Shyam Lal @ Bhajni were also the offenders or not.
55. The witness was crossexamined on the point of identity of the accused by learned SC No.35/14 State Vs. Mahender @ Ganja etc. 15/69 Addl. PP for the State. She admitted that due to lapse of time, she is not 100% sure about the three accused persons (i.e. Mohd.Raja, Shyam Lal @ Bhajni and Raju S/o Bhagat Singh), whom she was not able to identify. She also stated that she do not know if they were the assailants or not.
56. This witness was cross examined at length by Sh.Dinesh Sharma learned Amicus Curiae for all accused. In her cross examination, this witness deposed that she is not 100% sure as to how much money she was having, in Euros and in Indian Rupees, when she left from her hotel for going to National Museum on 14.01.2014. This witness further deposed that she does not remember if she had stated to Denmark Police that on that day she was carrying Rs. 8,000/ and 150 Euros. This witness admits that she had stated to the Denmark Authorities on 07.04.2014 that she does not remember as to how much money she was having and that she was having around Rs. 8000/ and 150 Euros. This witness further deposed that she does not have the bill for the Buddha statue which she had purchased on that day.
57. This witness further deposed that she is not certain but accused in black shirt [witness has pointed out towards accused Raju S/o Om Prakash] present in the court today, was the person who had told her the direction on that day.
58. This witness further deposed that the accused wearing a red shirt today [witness has pointed out towards accused Mahender @ Ganja] had threatened her by showing the knife firstly. No one else threatened me with the knife. This witness further deposed that she had not seen the knife in hand of any other accused. This witness further deposed that during the five hours time i.e. till the incident lasted, the accused persons were running back and forth from the place of incident, sometimes to buy glue for sniffing, to buy condoms etc. and they also brought liquor and were having it in small cups and they also forced her to drink it and she might have drunk 1 or 2 cups. Accused Mahender @ Ganja was the leader of all the accused. Accused Mahender @ Ganja was not the oldest amongst the accused. This witness further deposed that Police was called with help of some SC No.35/14 State Vs. Mahender @ Ganja etc. 16/69 Canadian people who were also staying in the same hotel and Police reached there in about 1015 minutes and she also narrated the incident to police orally besides giving her complaint in writing. This witness had denied to the suggestion that she had stated to the doctors in Denmark that the offenders had not used any condoms. The condoms of some of the accused fell off before the ejaculation.
59. This witness further deposed that she had told the doctor in Denmark that she had taken bath for about one hour and she had also brushed and cleaned her nails properly.
60. This witness further admits that she had urinated several times before she was medically examined at Denmark.
61. This witness further deposed that she had stated to the Denmark Authorities that the leader stated that they did not want her money. (Vol. However, it appears that it was wrongly understood. What I meant was that firstly they had robbed me and taken away my glasses, money, phone etc. and thereafter they had raped me.)
62. This witness denied to the suggestion that the accused present in the court today did not commit the alleged offences. This witness further deposed that she is not 100% sure that all the accused persons were seen by her. (Vol. But she has identified some of them today as per her memory.) This witness had denied to the suggestion that her belongings were not robbed by the accused or that she has wrongly identified the accused today or that she has deposed falsely.
63. PW13 Mr. Rasmus Nielsen, Police Inspector (Investigation) - Copenhagen Police, Denmark deposed that he met the Prosecutrix 'SS' when she reached Copenhagen Airport on 15.01.2014 at about 5 PM (Local Time), with the help of a nurse provided by the Denmark Government to help the victim of rape crises. The victim was taken directly to the State Hospital and was examined in special ICU. Her forensic medical examination was also done in the hospital.
SC No.35/14 State Vs. Mahender @ Ganja etc. 17/69
64. This witness further deposed that after the medical examination, he conducted an interview of the Prosecutrix on the same night and thereafter the case was handed over to Detective Sergeant, Britta Almfort, Homicide Division. This witness also proved the said interview in Danish Language as Ex.PW13/A and the English translation of the said interview along with certificate of the official translator is Ex.PW12/DB.
65. This witness also conducted second interview of the Prosecutrix on 20.01.2014 and proved the same having English translation and certificate of official translator as Ex. PW13/B. This witness also prepared the report with respect to some details which the victim sent to him via email on 24.01.2014 and proved the same as Ex.PW12/DA along with its English translation and certificate of the official translator.
66. PW14 Ms. Britta Almfort, Detective Inspector, Copenhagen Police, Denmark deposed that this case was taken over by her on 20.01.2014 from Insp. Rasmus Nielsen and that he gave her all the details of the case. This witness also proved the forensic medical examination report under the signatures of Dr.Steen Holger Hansen along with Dr.Rikke Heimburger, whose signatures she identified being familiar as she had worked with him for the last about 25 years. She also proved original report in Danish Language and its translated copy in English along with certificate in regard to true translation as Ex. PW 14/A (Colly).
67. This witness also proved the CD containing 10 photographs of the Prosecutrix 'SS' (Ex.PW12/A1 to Ex.PW12/A10) prepared at the time of her forensic medical examination as Ex.PW14/B. She also collected the DNA profiling report from the Department of Forensic Medicine, University of Copenhagen and proved the said report along with its English language and certificate of official translator and interpretor as Ex.PW14/C (Colly).
68. PW14 further deposed regarding having interviewed the victim on 07.04.2014 and SC No.35/14 State Vs. Mahender @ Ganja etc. 18/69 09.04.2014 and proved the reports of the said interviews along with its English translation and certificate of official translator as Ex.PW14/D (running into 36 pages) and Ex.PW 14/E (running into 13 pages) respectively.
69. PW15 HC Satender Kumar deposed regarding involvement of Accused Mahender @ Ganja recorded at PS Paharganj in case FIR No.219/2012 PS Paharganj under Section 21 NDPS Act and the present case. He also proved his report to this effect duly forwarded by SHO as Ex. PW15/A.
70. PW16 HC Ajay Kumar. This witness had accompanied the Mobile Crime Team headed by SI Pankaj Kumar alongwith HC Hari Kishan, Fingerprint Proficient to the place of occurrence i.e. small garden in the ground of Railway Officer's Club at State Entry Road, NDRS. This witness had taken 30 photographs of the spot from different angles which are already Mark PW5/B1 to PW5/B30 and these photographs were developed through the negatives which he has e brought today in court and this witness has proved negatives of these photographs vide Ex. PW16/A1 to PW16/A30 and the photographs already Mark PW5/B1 to PW5/B30 are now exhibited as Ex. PW16/B1 to Ex. PW16/B
30.
71. This witness was been cross examined by Sh. Dinesh Sharma- learned Amicus Curiae for all accused. In his cross examination, this witness has deposed that call was received at about 12.30 AM [midnight] and he had started clicking the photographs with his camera at about 1.15 AM and it took about 30 minutes to take the photographs. This witness has further deposed that the photograph Ex PW16/B3 shows the front portion of Railways Officer's Club and one vehicle is seen parked in the said photograph. This witness further deposed that he cannot tell the sequence in which he had clicked the photographs, even after seeing the negatives and after he finished taking the photographs, SI Pankaj directed the IO to collect the physical evidence available at the spot.
72. PW17 Ct. Vijay Pal. This witness on 19.01.2014, as per the directions of I.O. had SC No.35/14 State Vs. Mahender @ Ganja etc. 19/69 got medically examined accused Raju Bhajje from the LHMC Hospital. This witness has proved the seizure memo vide Ex.PW17/A.
73. PW18 Ct. Dharampal. This witness had got medically examined accused Raju Bhajje on 20.01.2014 from the RML Hospital. This witness has proved the seizure memo vide Ex.PW18/A.
74. PW19 SI Anand Singh. This witness in the intervening night of 1415.01.2014 was on night emergency duty at PS Paharganj. This witness on receipt of DD No.25A regarding rape and robbery with a Danish Lady at the end of Estate Entry Road, along with L/Ct. Mamta and HC Dayanand had gone to hotel Amex Inn, Arakashan Road, Gali No.6, Nabi Karim, Delhi. This witness found SHO Nabi Karim, SI Neeraj, SI Rajeev Gulati and other police staff of PS Nabi Karim present there along with the complainant. In his presence, complainant/prosecutrix had handed over the handwritten complaint Ex.PW4/A to W/SI Pushpa, who made endorsement thereon and handed over the same to HC Dayanand at about 11:50 p.m. for registration of FIR. This witness has proved seizure memo Ex.PW19/A.
75. In his presence, complainant had handed over the clothes which she was wearing at the time of incident after getting the same changed to the I.O. This witness has seized the same vide seizure memo Ex.PW19/B.
76. In his presence, complainant pointed out the place of occurrence with the help of DelhiAgraJaipur City Map vide Ex.PW4/C.
77. In his presence, crime team arrived at the spot and photographer had taken the photographs of the spot and crime team incharge inspected the scene of crime. From the spot, six used condoms which were having some liquid were recovered. This witness has seized the articles recovered from the place of incident vide seizure memo Ex.PW19/C. SC No.35/14 State Vs. Mahender @ Ganja etc. 20/69
78. This is the witness of arrest of accused Mahender @ Ganja vide arrest memo Ex.PW10/A, his personal search was conducted vide personal search memo Ex.PW10/B and his disclosure statement was recorded vide Ex.PW10/I. On the random search of accused Mahender @ Ganja, one I Pod and one earphone lead, both white colour were recovered from right side pocket of his wearing pant and Rs.800/ (one currency note of Rs.500/ and remaining of Rs.100/ each) were recovered from the upper pocket of his shirt. One black colour Nokia Mobile phone was also recovered from the accused about which he had stated that he had purchased this mobile phone from the money which he had received from the share of the robbed amount. This witness had seized aforesaid articles vide seizure memo Ex.PW10/E.
79. This is also the witness of arrest of accused Mohd. Raza vide arrest memo Ex.PW10/C, his personal search was conducted vide personal search memo Ex.PW10/D and his disclosure statement was recorded vide Ex.PW10/J. On the random search of accused Mohd. Raza one spectacles case of brown (Mehroon) colour having black colour press button and Rs.1000/ (two currency notes of Rs.500/ each) were recovered from the right side pocket of the wearing pant of accused. This witness had seized aforesaid articles vide seizure memo Ex.PW10/F. This witness has proved pointing out memo qua accused Mahender @ Ganja vide Ex.PW10/G and qua Mohd. Raza vide Ex.PW10/H.
80. This witness has got conducted medical examination of accused Mahender @ Ganja and Mohd. Raza vide Ex.PW19/D and Ex.PW19/E respectively.
81. This witness on 17.01.2014 had taken accused Mohd. Raza to RML Hospital for his blood and semen sample and doctor handed him the sealed bottle with the seal of CMO RML and sample seal, which this witness had seized vide seizure Ex.PW19/F.
82. This is also the witness of arrest of accused Raju @ Chhakka vide arrest memo Ex.PW19/G, his personal search was conducted vide personal search memo Ex.PW19/H and his disclosure statement was recorded vide Ex.PW19/I. On the random search of SC No.35/14 State Vs. Mahender @ Ganja etc. 21/69 accused Raju @ Chakka, one Apple I Phone was recovered which was seized vide seizure memo PW19 Ex./J.
83. This is also the witness of arrest of accused Arjun vide arrest memo Ex.PW19/K, his personal search was conducted vide personal search memo Ex.PW19/L and his disclosure statement was recorded vide Ex.PW10/M. This witness has prepared pointing out memo qua Raju Chakka vide Ex.PW19/N and qua accused Arjun vide Ex.PW19/O. Thereafter, in pursuance of his disclosure statement Ex.PW19/M got recovered one book kept in one brown coloured envelope of Jain Book Depot. This witness has seized the same vide seizure memo Ex.PW19/P. Accused Raju @ Chakka and Arjun were medically examined vide MLCs Ex.PW19/Q qua accused Raju @ Chakka and Ex.PW19/R qua accused Arjun and doctor handed over to him two sealed parcels along with sample seals of 'LHMC' and SSK, CMO, New Delhi and this witness had seized the same vide seizure memo Ex.PW19/S qua accused Raju @ Chakka and seizure memo qua accused Arjun vide Ex.PW19/T. Accused Raju @ Bhajji also pointed out the place of occurrence vide Ex.PW19/U.
84. This witness, on 18.01.2014, received a letter Ex.PW19/V (colly.) which was received from Copenhagen through CBI qua medical examination of the victim along with annexure running into 09 pages.
85. On 19.01.2014, accused Raju @ Bhajji, Raju @ Chhakka and Arjun were taken to LHMC for their medical examination in muffled faces and after their medical examination. After their medical examination, the doctor handed over to him two sealed parcels along with sample seals of LHMC and SSK hospital CMO which he had taken into police possession vide seizure memos Ex.PW19/S, Ex.PW17/A and Ex.PW19/T. This witness also received the MLC of accused Raju @ Bhajji (now Ex.PW19/W), Arjun (already Ex.PW19/R) and Raju @ Chakka (already Ex.PW19/Q). This witness had recorded supplementary disclosure statement of accused Mahender @ Ganja vide SC No.35/14 State Vs. Mahender @ Ganja etc. 22/69 Ex.PW19/X. Thereater, accused Mahender @ Ganja had got recovered one big knife underneath the bush by the side of the wall. This witness had prepared the sketch of the knife vide Mark PX now Ex.PW19/Y. This witness had seized the same vide seizure memo Ex.PW19/Z. This witness has proved the site plan to the place of recovery of the knife vide Ex.PW19/AA. This witness had also prepared the site plan of the recovery of the book along with envelope on 17.01.2014 and the same is now Ex.PW19/BB.
86. On 17.01.2014, accused Mahender @ Ganja and Mohd. Raza were taken to RML Hospital for their potency test and doctor declared capable to perform sexual intercourse. The MLCs of accused Mahender @ Ganja and Mohd. Raza vide Ex.PW19/CC & Ex.PW19/DD respectively.
87. This witness further deposed that on 20.01.2014, the investigation of this case was taken over by SHO Insp. Raj Kumar to whom he handed over the case file. SHO/Insp. Raj Kumar got recorded further disclosure statement of accused Mahender @ Ganja vide Ex.PW19/EE, of accused Mohd. Raza vide Ex.PW19/FF, of accused Raju @ Chakka vide Ex.PW19/GG, of accused Arjun vide Ex.PW19/HH, and of accused Raju @ Bhajji vide Ex.PW19/II. Potency test of accused Raju @ Chakka, Raju @ Bhajji and Arjun were conducted by the doctor and doctor opined that they were capable of performing sexual intercourse. The report on the MLC Ex.PW19/JJ qua accused Raju @ Chakka, Ex.PW19/LL qua Raju @ Bhajji and Ex.PW19/MM qua accused Arjun. Doctor had handed over 10 sealed parcels along with sample seals containing the scalp hair sample and Buccal Smear of all the five accused in sealed parcels which this witness has seized vide seizure memo Ex.PW19/NN of accused Mohd. Raza, of accused Raju @ Bhajji vide Ex.PW19/OO, of accused Arjun vide Ex.PW19/PP.
88. This witness further deposed that as per direction of SHO, accused Mahender @ Ganja, Mohd. Raza, Arjun, Raju @ Chakka, Raju @ Bhajji were taken out in muffled face and were taken to LHMC Hospital to collect their penile swab and groin swab and on their SC No.35/14 State Vs. Mahender @ Ganja etc. 23/69 request, the doctor conducted the test and handed over the sealed parcel along with sample seal of CMO LHMC and SSK Hospital of each accused and he had taken the same into police possession vide seizure memo Ex.PW19/QQ. Doctor had prepared MLC in this regard of accused Mahender @ Ganja vide Ex.PW19/RR, of accused Mohd. Raza vide Ex.PW19/SS, of accused Raju @ Chakka vide Ex.PW19/UU and of accused Arjun vide Ex.PW19/VV.
89. This witness further deposed that he had accompanied Insp. Mahesh Kumar, official draftsman to the spot and taken the measurement of the spot with his assistance of the place of occurrence and place of recoveries.
90. This witness was cross examined by Ld. Amicus Curiae for accused persons. In his cross examination, this witness denied to the suggestion that the samples collected by the doctor during medical examination of the accused persons were tampered with or were manipulated. This witness further denied to the suggestion that PW Shivji did not make any statement or that he was pressured by them to become a false witness in this case.
91.
92.
93. PW20 HC Jitender Kumar brought the list of cases registered against accused Mahender @ Ganja as well as Accused Raju Bhajje S/o Bhagat Singh and proved the same as Ex.PW20/A and ExPW20/B (Colly) respectively. This witness has proved the previous involvement of accused Mahender @ Ganja and Raju Bhajje through these two documents.
94. PW21 HC Subhash Chand deposed regarding having received the information at 9:35 PM on 14.01.2014 at PS Nabi Karim qua the alleged incident of rape and robbery on the Prosecutrix 'SS'. He also recorded the same in the roznamcha and marked to SI Neeraj for necessary action. This witness also proved the relevant entry in the roznamcha as Ex.PW21/A. SC No.35/14 State Vs. Mahender @ Ganja etc. 24/69
95. PW22 MHC(M) HC Ashok deposed regarding collection of exhibits in sealed condition from W/SI Pushpa, SI Anand and Insp.Raj Kumar on different dates and deposit of the same mentioning the details in Register No.19 maintained in the PS vide respective entries. This witness further deposed regarding sending the same to Truth Lab, Safdarjung Enclave, Delhi as well as FSL on different dates vide separate Road Certificates, against their respective acknowledgments. Through this witness prosecution has proved the movement of case property.
96. PW23 SI Neeraj Kumar. This witness has deposed that in the intervening night of 14/15.01.2014, he was posted at PS Nabi Karim and was on emergency duty from 8 PM to 8 AM and on receipt of DD No. 24A regarding rape with a Danish lady, he alongwith Ct. Nishu and Ct. Satish had gone to hotel Amex Inn, Aarakashan Road. On reaching there, he met prosecutrix and he had noticed the injury mark on her face and lip. This witness had also noticed her clothes were in torn condition and were dirty with mud [mitti lage hua the]. In the meanwhile, SHO PS Nabi Karim and SI Rajiv Gulati also reached there. This witness has further deposed that he made enquiry from the prosecutrix in presence of L/Ct and she pointed out the place of occurrence with the help of Delhi Agra Jaipur City Map at State Entry Road near the statue of Hindu Goddess, which was within the jurisdiction of PS Pahar Ganj and she had informed him that she was raped by eight persons and her belongings were snatched by them. This witness further deposed that since the occurrence was of the PS Pahar Ganj, accordingly, the message was given to PS Pahar Ganj and at about 11 PM, W SI Pushpa from PS came there along with other staff and she made investigation.
97. In his cross examination by Sh. Dinesh Sharma, Learned Amicus Curiae for all accused, this witness deposed that his statement was recorded in this case under Section 161 CrPC and he had stated in his statement word 'ladke' and not 'persons'. This witness further deposed that he had noticed another foreigner lady present in the hotel alongwith victim, when he reached there, whose name he does not remember now, nor he had made SC No.35/14 State Vs. Mahender @ Ganja etc. 25/69 any enquiries from her. This witness had denied to the suggestion that no information was received in the PS or he had not visited the said hotel or did not do any enquiry from the prosecutrix or deposed falsely.
98. PW24 is W/SI Pushpa who is initial I.O. of this case. This witness deposed that she reached at hotel Amex Inn, 8145, Gali No. 6, Aarakashan Road, Nabi Karim, Delhi as per directions of senior officers. When she reached there, she found SI Neeraj, W. Ct. Neeshu, Ct. Satish from PS Nabi Karim. SI Anand Singh, W. Ct. Mamta and HC Dayanand were already there. This witness further deposed that complainant met her and she handed over to her written complaint which were written by her. This witness made formal enquiry from the complainant also and she made her repetitive requests for her medical examination, but she flatly refused to get herself medically examined. This witness had found injury on the face and other parts of the body of the complainant and her wearing clothes were with mud and from the circumstances and the contents of the complaint, offence under Section 376 D/397 IPC was found to be made out. Accordingly, she made endorsement on the complaint Ex. PW24/A and further this witness handed over the rukka to HC Dayanand with directions to get the FIR registered at about 11.50 PM and in the meantime, some other officers also arrived there. This witness has further deposed that again request was made to the complainant to get herself medically examined from the hospital, but she did not agree to her request and she was offered that doctor can be called for her examination in the hotel itself, but she did not ready for this also. This witness has further deposed that complainant during further enquiry produced before her one groundnut colour handkerchief and further told her that this is the handkerchief which was used by one of the accused for glue sniffing. This witness has converted the same into parcel and marked as Mark A1, affixed my seal 'P' and took the same into police possession through seizure memo vide Ex. PW19/A in presence of SI Anand Singh. This witness further deposed that complainant handed over her white colour torn top in dirty condition, multi colour long top in torn and dirty condition, one black colour sweater on which made in Bangladesh was written and one black colour inner wear and black colour lower. This witness converted all these clothes into a parcel and affixed her seal 'P' mark SC No.35/14 State Vs. Mahender @ Ganja etc. 26/69 the parcel as Mark A2 and took the same into police possession through seizure memo vide Ex. PW19/A in presence of SI Anand Singh.
99. This witness has further deposed that in the meantime, HC Dayanand returned to the hotel and he handed her back copy of FIR and original rukka and she wrote FIR number etc. on the top of the documents and on their intimation already given to Danish embassy, two officials from embassy also arrived and copy of FIR was also provided to the complainant and after arrival of official from Danish embassy, again request was made for medical examination, but she refused as she had to leave for her own country on the same morning.
100. This witness has made enquiry from the complainant regarding the place of occurrence and she pointed out the place with the help of City Map Jaipur, Agra and Delhi i.e. State Entry Road, Railway Club Park near Hindu Goddess Idol. This witness has also recorded the supplementary statement of the complainant.
101. This witness accompanied SI Anand during the investigation who took over the further investigation as per directions of Sr. Officers. This witness has prepared the site plan without scale vide Ex.PW24/B. This witness has recorded the statement of eye witness Shivji Singh in the same night. This witness has further deposed that crime team officials headed by SI Pankaj reached there and photographers took the photographs and site was inspected by SI Pankaj. This witness has recorded their statements. This witness further deposed that on further inspection, six used condoms having some liquid inside were found there and those were kept separately in separate container and was given serial No. 1 to 6 and one pack unused Cobra Condom and one empty cover of the same was recovered, which was kept in plastic container and was given serial No. 7 and four butts of cigarette were also recovered, kept in plastic container and was given serial No. 8 and some leaves on which white liquid was found there was recovered from the garland of Ashoka tree which was kept in containers and was given serial No. 9 and 10 and earth was also taken and was kept in container, given serial No. 11 and when she removed some SC No.35/14 State Vs. Mahender @ Ganja etc. 27/69 leaves of the Ashoka tree, she found one stocking panty of light yellow colour and stocking of black colour from underneath and one grey colour full sleeves which was having mud thereon. It was converted into a parcel and was given serial No. 12 and one black rexine belt, one Tshirt having attached cap therein which also converted into a parcel and was given serial No. 13. This witness has lifted some garlands and was kept in gunny bag and was converted into a parcel, was given serial No. 14 and one used underwear of light green colour and one multi colour piece of cloth having lace which appeared to be of complainant was also recovered and was converted into parcel and was given serial No. 15, one light yellow colour handkerchief having some white liquid thereon was also found was converted into a parcel and was given serial No. 16. This witness affixed her seal 'P' on this parcel and took the same into police possession through seizure memo Ex. PW19/C. This witness has taken into possession the photocopy of entry register of the hotel and one DVD showing the presence of victim there through seizure memo Ex. PW4/D. This witness had also taken the copy of passport, copy of register which is Ex. PW4/B. This witness has recorded the statement of PWs and DVD seized by her vide Ex PW4/P2. This witness has further deposed that separate teams were formed of the police officials for search of accused and other persons and subsequently, investigation of this case marked to SI Anand Singh, whom she handed over the documents.
102. PW25 is Sh. D.S. Paliwal, Sr. Scientific Assistant (Biology), PW25 Sh. D.S. Paliwal is Sr. Scientific Assistant (Biology), from FSL, Delhi. He deposed that in the present case 60 parcels were received at his office on four days i.e. on 21.01.2014, 22.01.2014, 05.03.2014 and on 26.03.2014 in sealed condition along with sample seals and forwarding letters for examination and opinion.It was marked to him and he examined the exhibits and subjected them to DNA examination and reached the following conclusion :
DNA Profile from the source of exhibit '18e' (Blood sample of Mahender @ Ganja) is matching with DNA Profile from the source of exhibit 'A2b' (multicolour top), exhibit 'A3d' (condom), exhibit 'A 3e' (condom).
SC No.35/14 State Vs. Mahender @ Ganja etc. 28/69 DNA Profile from the source of exhibit '18e' (Blood sample of Mahender @ Ganja) is also matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (white colour top), 'A2c' (Sweater) & exhibit '29' (Blanket).
DNA Profile from the source of exhibit '31a' & '52' (Blood sample of Mohd.Chand) is matching with DNA Profile from the source of exhibit 'A3b' (Condom).
DNA Profile from source of exhibit '31a' & '52' (Blood sample of Mohd.Chand) is also matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (while colour top), 'A2c' (Sweater), & exhibit '29' (Blanket).
DNA Profile from the source of exhibit '20d', exhibit '32' (Blood sample of Mohd.Raja), exhibit '22f' (Blood sample of Raju Bhajje @ Raju Bhagat), exhibit '24f' (Blood sample of Raju Chhakka), exhibit '26e' (Blood sample of Arjun), exhibit '28d', exhibit '28e' & exhibit '47' (Blood sample of Uvedullah), exhibit '63' (Blood sample of Shyam Lal @ Bhajani) & exhibit '65' (Blood sample of Sadakat @ Javed @ Chikna) is matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (White colour top), 'A2c' (Sweater) & exhibit '29' (Blanket).
103. The report of PW25 is exhibited as Ex.PW25/A (Colly). PW25 also deposed that he has also seen the report prepared by the Department of Foreinsic Medicine, University of Copenhagen, exhibited as Ex.PW14/C (Colly) and he is of the opinion that on the broader aspect it may be observed that the same alleles has been indicated in certain loci like D3S1358, vWA, D16S539, D2S1338, D8S1179, D21S11, D18S51, D19S433, THO1, FGA and Amelogenin which are common in both reports i.e. report prepared by him after examination of the exhibits deposited by the Investigation Agency Ex.PW25/A and report prepared at Copenhegan Ex.PW14/C (Colly.)
104. PW26 Inspector Raj Kumar is material witness being concluding I.O. of yhis case.
This witness has deposed that on 20.01.2014 he was posted at PS Pahar Ganj as SHO and on the same day, he took up the investigation of this case from SI Anand Singh. This witness has further deposed that accused persons namely Arjun, Raju Chakka, Raju Bhajje, Mahender @ Ganja and Mohd. Raja were brought before him in muffled face from the lockup and he interrogated all these accused persons about availability of other SC No.35/14 State Vs. Mahender @ Ganja etc. 29/69 two accused Bhajni and Javed. This witness has recorded disclosure statement of accused persons vide Ex. PW19/EE, Ex. PW19/FF, Ex. PW19/GG, Ex. PW19/HH and Ex. PW19/II and he directed SI Anand Singh for getting conducted the potency test of all the accused and preparing the DNA profiling. This witness has got sent book alongwith original complaint, both already exhibited to the Truth Lab, Safdarjung Enclave, New Delhi for comparison of the handwriting and he reached Tis Hazari Courts and all above mentioned five accused were produced in court after their examination in RML Hospital and they were taken on 03 days Police Custody Remand and they searched for accused Javed and Bhajni but to no avail. This witness has recorded the statement of PWs and got deposited the exhibits at FSL through ASI Harpal Singh. This witness had also gone to FSL with ASI Harpal Singh and recorded the statement of ASI Harpal Singh and MHC[M] and the exhibits taken from LHMC were deposited in the malkhana by SI Anand Singh and on 22.01.2014 these exhibits were further deposited at FSL, Rohini for examination. This witness further deposed that Ct. Jagjit Singh handed over to him result of Truth Lab expert and complaint as well as the book and book was deposited in the malkhana and complaint was filed. This witness has made correspondence on 24.01.2014 with Embassy of Denmark through FRRO.
105. This witness further deposed that on 27.01.2014 statement of eye witness Shivji Singh was recorded under Section 164 CrPC and he obtained the copy of the statement from the court.
106. This witness further deposed that on 28.01.2014 TIP of the knife recovered and used by accused in commission of crime was got conducted by Ld. MM. The eye witness Shivji Singh had identified the same during judicial TIP and he had obtained the copy of proceedings. This witness had recorded the statement of Pws.
107. This is the witness of arrest of accused Shyam Lal @ Bhajni. This witness has proved arrest memo and personal memo vide Ex. PW26/A and Ex. PW26/B. This witness has also proved the disclosure statement of accused Shyam Lal @ Bhajni vide Ex. PW26/C. SC No.35/14 State Vs. Mahender @ Ganja etc. 30/69 At the time of his arrest, 10 Euros of denomination 10 and SIM card of the victim were recovered. I wrote down the details of the SIM card and the seizure memo, converted the Euros and SIM card into parcel separately and affixed my seal 'RK' thereon, took it into police possession through seizure memo now Ex. PW26/D.
108. This witness has prepared the pointing out memo and is now Ex. PW26/E and recorded the statement of PWs. Face of Accused Shyam Lal @ Bhajni was kept in muffled from the time of his arrest and production in court. This witness has correctly identified all six accused present in court. This witness has further deposed that he had made correspondence through the proper channel and the investigating report including the expert report of Denmark already exhibited were collected by him. This witness had also collected the report from FSL i.e. DNA report and other report i.e. from biology division and physics division of FSL, Rohini. I placed on file all these reports mentioned above through supplementary chargesheet. The report of expert i.e. Assistant Director [Forensic] FSL, Rohini running into 04 pages front and back is now Ex. PW26/F [ Report is per se admissible under Section 293 CrPC]. The report of expert i.e. Senior Scientific Officer/Chemical Examiner of Biology Division FSL, Rohini running into 03 pages front and back is now Ex. PW26/G [ Report is per se admissible under Section 293 Cr. P.C]. On the basis of material collected during investigation, chargesheet was filed.
109. This witness was at cross examined at length by Sh. Dinesh Sharma, Ld. Amicus Curiae for all the accused persons. In his cross examination, this witness had denied to the suggestion that he has not conducted the investigation fairly or properly. This witness had further denied to the suggestion that accused persons neither gave any disclosure statement nor pointed out any place of occurrence or nothing was recovered from them. This witness had denied to the suggestion that witness Shivji Singh was pressurized to give statement u/s 164 Cr.P.C.
110. PW27 HC Dayanand deposed regarding taking of the rukka prepared by W/SI Pushpa on the complaint written by Complainant 'SS' on 14.01.2014 at 11:15 PM and got the FIR SC No.35/14 State Vs. Mahender @ Ganja etc. 31/69 registered through Duty Officer. He further returned to the spot and handed back the original rukka and copy of the FIR to IO/WSI Pushpa.
111. Thereafter, prosecution evidence was closed as Ld. Spl. PP. Dropped certain witnesses cited in chargesheet being repetetive in nature and of certain undisputed facts admmitted by defence.
STATMENT OF ACCUSED U/S 313 CR.P.C.:
112. After prosecution evidence, statement of accused u/s 313 Cr. P.C. was recorded. All incriminating evidence brought on file was put to the accused persons, where accused persons had denied all allegations, evidence and circumstances put to them. In statement u/s 313 Cr. P.C. accused persons have claimed that they have been falsely implicated in the present case . Accused took a plea that they had hired a prostitute for sex one day prior to the date of alleged incident and they had sex with that prostitute near the statute of Indian Goddess near the alleged place of incident by using condoms and the used condoms were left by them at the spot which have been planted in this case. Accused persons have not preferred to lead any D.E.
113. Thereafter, case was fixed for final arguments.
ARGUMENTS PROSECUTION
114. Arguments had been advanced on behalf of the State by Sh. Atul Kumar Shrivastava, Ld. Special PP for the State. At the outset, the Special PP for the State strongly argued that the witnesses examined on record have been able to prove the case of the Prosecution beyond the realm of reasonable doubt. Much stress was placed upon the testimonies of eye witness PW2 Shivji Singh and Prosecutrix/PW12, medical evidence, Scientific evidence as well as recoveries effected at the instance of accused persons or from their possession.
SC No.35/14 State Vs. Mahender @ Ganja etc. 32/69
115. Learned Special PP contended that the Prosecutrix/PW12 categorically identified Accused Mahender @ Ganja, Raju @ Chakka and Accused Arjun upon seeing them in the Court. He further submitted that initially PW12 had also identified Raju Bhajje S/o Bhagat Singh, however she again stated that she is not 100% sure about him. PW12 also deposed that she is not certain if the other two accused i.e. Mohd.Raja and Shyam Lal @ Bhajni were assailants or not. Learned Special PP however submitted that it is only the claim of the Prosecutrix herself if the Accused Raju S/o Bhagat Singh, Mohd.Raja and Shyam Lal were also the assailants or not.
116. Learned Special PP further submitted that the identity of all the six accused persons facing trial in this case have been established beyond the realm of reasonable doubt by the testimony of PW2 Shivji Singh. He submitted that admittedly PW2 Shivji Singh was residing in a room near the place of incident and was employed as gardener in the Indian Railways. His presence at the place of occurrence was thus natural. PW2 identified all the six accused persons stating that he knows them very well as they are ruffians of the area and commit petty offences in the nearby area. PW2 also stated that he has been seeing the accused persons from their childhood and that he has been working as a gardener in the same place for the last about 30 years. The identification of the Accused persons by PW2, thus cannot be questioned.
117. Learned Special PP further submitted that as per PW2, he saw the accused persons committing the alleged offence by climbing on the heap of the earth, which was lying near the place of occurrence. The fact that construction was going on near the place of occurrence has also been brought out from the testimony of PW5 SI Pankaj. Learned Addl. PP also pointed out that the heap of dust is also visible in the photograph Ex. PW 16/B30. Thus, strong reliance was placed on the evidence of PW2 and it was contended that the identity of all the six accused persons have been clearly established on record by his testimony coupled with other evidence.
118. Prosecution further submitted that apart from the eye witness count of PW2 Shivji SC No.35/14 State Vs. Mahender @ Ganja etc. 33/69 Singh and the testimony of Prosecutrix/PW12 and the report of FSL Ex.PW25/A also clearly establish that the DNA profile from the blood samples of Mohd. Raja, Raju @ Bhajje, Raju @ Chakka, Arjun and Shyam Lal @ Bhajni was found matching in the mixed DNA profile from the white coloured top (exhibit A2a), Sweater (exhibit A2c) of the Prosecutrix and blanket, which was recovered from the place of incident. He further submitted that as per the aforesaid report, the DNA profile from the blood sample of Accused Mahender @ Ganja was found matching with the DNA profile of multi coloured top (exhibit A2b), white coloured top (exhibit A2a), Sweater (exhibit A2c), Blanket (exhibit 29), condom (exhibit A3d) and condom (exhibit A3e). The sweater and the white coloured top when put to the Prosecutrix were also duly identified by her during her examination in the court.
119. He submitted that the aforesaid scientific evidence nails the case of the Prosecution and establish the guilt of all the accused persons beyond reasonable doubt.
120. The next contention of the Prosecution is that besides the aforesaid scientific evidence and identification of the accused by PW12 and PW2 as aforesaid, the recovery of the robbed articles, as proved by the prosecution witness from the possession of the accused persons also establishes their guilt. It is submitted that the IPod and ear phone [Ex.P 12/P1 (Colly.)] and Rs.800/ recovered from the upper pocket of wearing shirt of accused Mahinder @ Ganja at the time of his arrest were duly identified by the Prosecutrix as belonging to her.
121. Further, the spectacles case Ex.PW12/P4 and Rs.1000/ cash recovered from the possession of Accused Mohd.Raja also establishes the case of the Prosecution as the Prosecutrix PW12 categorically identified the said spectacles case when shown to her in the court of trial. Similarly, the Prosecutrix PW12 also identified the IPhone, which was recovered from the possession of Accused Raju @ Chakka and the book 'Lonely Planet' along with brown paper envelope recovered from the possession of Accused Arjun.
SC No.35/14 State Vs. Mahender @ Ganja etc. 34/69
122. Learned Special PP further contended that the knife Ex.PW2/P1 used at the time of the offence in question was also correctly identified by PW12 'S.S.', though she was unable to state so with certainty if the same knife was used by the assailants while committing the alleged offence. Learned Addl. PP submitted that a victim of gang rape even otherwise cannot be expected to have a clear view of the weapon of offence keeping in view her mental state at the time of the alleged incident.
123. Besides this, the testimony of PW6 Sh. A.K.Gupta, Director (Documents), Truth Lab, New Delhi also establishes that the handwriting on the said book Ex.PW6/B and the brown paper envelope Ex.PW6/A is of the Prosecutrix PW12. The said book and envelope recovered at the instance of Accused Arjun is stated to have been proved beyond reasonable doubt by the Prosecution.
124. It is further contended by learned Addl. PP that the Prosecution has also been able to prove the recovery of 10 Euros of denomination 10 and one sim card of Denmark belonging to the Prosecutrix claiming the case of the Prosecution against Accused Shyam Lal @ Bhajni. Learned Addl. PP also contended that from the testimony of Prosecutrix, it has been established that all the Accused persons in furtherance of their common intention abducted her with an intent to commit rape upon her on the date of the alleged incident and commit gang rape upon her by extending threat to kill her and thereby committed offence under Sections 366/506/34 & 376 (D) IPC besides the other charges on which they have been facing trial.
DEFENCE :
PW2 Shivji Singh - A planted witness
125. On the other hand, learned Amicus Curiae representing Accused persons strongly opposed the case of the Prosecution contending inter alia that the accused persons despite being innocent have been falsely implicated in this case.
SC No.35/14 State Vs. Mahender @ Ganja etc. 35/69
126. It was firstly pointed out by the defence that PW2 Shivji Singh is a planted witness. He submitted that it is surprising that PW2 knows all the Accused persons as apparently he has been working as a gardener at Railway Officers' Club for the last 30 years and residing in the accommodation in question. He submitted that PW2 was thus bound to identify those persons upon seeing them in the course of trial. However, the mere fact that he was able to identify all the accused persons, cannot be sufficient to prove their involvement in the commission of the alleged offences.
127. It is the plea of the defence that PW2 is a planted witness and has been thoughtfully arranged as an eye witness by the Investigating Agency in view of the fact that his presence near the place of occurrence would be easy to establish on record. Extending his arguments further, learned Amicus Curiae submitted that it is extremely surprising that PW2 would hear the voices of the Foreigner Lady by 67 PM upon returning to his room despite the fact that as per PW12 Prosecutrix, she was not allowed to scream by the assailants as they had stuffed a piece of cloth in her mouth and was threatened on the point of knife and was also given beatings in case she try to raise an alarm.
128. It was further contended that as per PW2, when he was coming back to his room after returning from the market at 67 PM, he saw the boys from a distance of 45 feet from the alleged place of incident and despite this he did not hear any sound of the Prosecutrix. However, surprisingly, he was able to hear her sound when he was inside his room, which was at a distance of 50 yards from the alleged place of incident. It was submitted that this clearly illustrates the falsity of claim of PW2 and the concoction of facts and planted witness at the hands of the Investigation Agency.
129. It was next argued that the Prosecution has failed to mention the exact location of the room of PW2 either in the unscaled site plan Ex.24/B or in the scaled site plan Ex.PW 8/A.
130. The next contention of the defence is that it has been brought out in the cross SC No.35/14 State Vs. Mahender @ Ganja etc. 36/69 examination of PW8 Insp.Mahesh that there is a boundary wall of 7 ft. height at point 'X' to 'X', as indicated in the scaled site plan Ex.PW8/A and it is not possible to see on the either side of the wall. PW8 also stated that the said boundary wall was at a distance of 2 ft at point B i.e. place of occurrence. Based on the said evidence, learned Amicus Curiae contended that considering the height of the said boundary wall it was not possible for PW2 Shivji Singh to have witnessed the incident in question.
131. Though Prosecution argued that PW2 testified that he witnessed the incident after climbing the heap of earth as some construction work was going on, yet the Prosecution has failed to discharge its onus of proving the location of the said heap of earth and its distance from the boundary wall so as to enable the court to ascertain whether PW2 could have possibly seen the incident or not.
132. Moreover, the Prosecution failed to prove the existence of any source of light near the alleged place of incident. It was further submitted that it cannot be disputed that on the date of the alleged incident i.e. on 14.01.2014, it must have become dark when PW2 Shivji Singh allegedly witnessed the incident in question i.e. between 67 PM. In these circumstances, it is necessary for the Prosecution to prove on record that there was sufficient light in which the incident occurred and that PW2 was not in a position to identify the Accused.
133. Learned Amicus Curiae further submitted that though PW2 Shivji Singh as per the case of the Prosecution was met at about 1 AM in the intervening night of 1415.01.2014, yet none of the Crime Team officials i.e. PW5 SI Pankaj Kumar and PW16 HC Ajay Kumar deposed anything about his presence at the place of occurrence.
134. It is submitted that as per crime team report Ex.PW5/A, the spot was inspected by the crime team between 1 AM to 4 AM on 15.01.2014 and despite this the alleged eye witness i.e. PW2 Shivji Singh was not seen by the crime team in view of the fact that he testified to this effect. Rather, PW5 SI Pankaj Kumar clearly stated in his crossexamination that SC No.35/14 State Vs. Mahender @ Ganja etc. 37/69 he did not meet any eye witness. However, he remained at the place of occurrence.
135. In support of his arguments that PW2 Shivji Singh is a planted witness, it was further submitted by learned Amicus Curiae that despite the fact that PW2 was available near the place of occurrence after 1 AM as per Prosecution's own case, yet he did not meet the witness of any of the recoveries allegedly effected from the spot after arrival of the crime team, which also supports his argument that PW2 is a planted witness.
136. With regard to the identity of the weapon of offence i.e. knife used during the incident, it was submitted by learned Amicus Curiae that though PW2 deposed that the said knife had a brass handle which is also in consonance with the case of the Prosecution. PW12 Prosecutrix deposed that it had a brass handle. It was further submitted that the testimony of PW2 Shivji Singh identifying the said knife during the course of trial is also a result of his tutoring inasmuch as he could not have possibly seen the handle of the knife when Accused Arjun allegedly threatened him by showing him the knife in the course of incident.
137. My attention was also drawn by the learned Amicus Curiae that the learned MM who had conducted the TIP proceedings of the knife wherein it was identified by the eye witness PW2 Shivji Singh. It was contended that in his crossexamination PW7 i.e. learned MM admitted that out of the four knives produced by the IO for the purpose of mixing with the case property, two were having wooden handles and two were having metallic handles. It was thus contended that apparently two knives out of the four knives were similar to the knife in question. Further, admittedly the learned MM did not mention the dimensions of the knife in the proceedings brought by the IO for the purpose of mixing. Hence, there is no where that the defence can ascertain if the knife brought for the purpose of mixing were similar in size to the knife in question. The TIP proceedings conducted by PW7 have thus been vehemently assailed by the defence.
138. The next argument of the defence is that though as per PW2 Shivji Singh, Accused SC No.35/14 State Vs. Mahender @ Ganja etc. 38/69 Arjun threatened him by showing him knife in the course of alleged incident. However, as per PW12 Prosecutrix in her crossexamination recorded on 01.07.2015, she deposed that she did not see the knife in hand except accused Mahender @ Ganja. The testimony of PW2 as stated above is thus false and tutored.
139. The defence further argued that there is no DD entry to establish the return of police officials in the PS after conducting the investigation on 15.01.2014. Thus, there is no question of the factum of meeting PW2 Shivji Singh at the spot having been mentioned in any such record thus belying the case of the Prosecution that PW2 met them at the spot on the intervening night of 1415.01.2015.
140. The fact that the application for recording statement of Shivji Singh under Section 164 Cr.PC was moved only on 27.01.2015 has also been stated to be the result of tutoring and pressurizing the witness by the Investigating Agency. It is further submitted that in the application of PC remand of Accused Mahender @ Ganja and Mohd.Raja moved by SI Anand, which forms part of the record founds no mention of the fact that the eye witness Shivji Singh was already met and it is only mention therein that Accused Mahender @ Ganja and Mohd.Raja have been arrested on the basis of secret information. It is further submitted that significantly the name of Accused Shyam Lal @ Bhajni does not feature in the said PC remand application, thus belying the plea of the defence that Shyam Lal @ Bhajni has been falsely implicated in this case and that PW2 Shivji Singh is a planted witness.
TESTIMONY OF PROSECUTRIX/PW12 :
141. The testimony of PW12 Prosecutrix has also been assailed by the defence on the ground that besides identifying Accused Mahender @ Ganja, Arjun and Raju S/o Om Prakash, the Prosecutrix 'SS' has failed to identify remaining Accused Shyam Lal @ Bhajni, Raju @ Bhajje, Raju S/o Bhagat Singh. It is further submitted that as per initial complaint Ex.PW4/A written by the Prosecutrix in her own handwriting, the age of SC No.35/14 State Vs. Mahender @ Ganja etc. 39/69 the assailants was mentioned to be 1718 years. However, all the Accused in the present case are above the age of 1718 years and in fact Shyam Lal @ Bhajni is about 50 years of age, as per the Prosecution case. Thus, no reliance can be placed on the identity of the accused established by PW12.
RECOVERIES FROM ACCUSED PERSONS (PLANTED) :
142. Learned Amicus Curiae also challenged the case of the Prosecution with regard to the alleged recovery of belongings of the Prosecutrix from the possession of the accused persons claiming that the same are planted. In the course of his arguments, my attention was drawn to the fact that as per PW12, her spectacles were returned to her by the police after she returned to the hotel on the night of 14.01.2015 itself. It is submitted that as per her complaint Ex.PW4/A, she has been robbed of her glasses and only spectacles case in addition to Rs.1000/ was recovered from the possession of Accused Mohd.Raja, as per the admitted case of the Prosecution.
143. Learned Amicus Curiae submitted that if Accused Mohd. Raja had robbed the complainant of her spectacles case, then it was not possible for the police to have returned her spectacles to her immediately after the incident. It is submitted that PW12 clearly deposed before the court that her spectacles were kept in the spectacles case. It is thus argued that the spectacles case was recovered from the alleged place of incident subsequently planted on Accused Mohd. Raja. Further, the alleged recoveries from the other Accused persons are also fabricated inasmuch as it was submitted by the learned Amicus Curiae that in the interview report of 15.01.2014 (Ex.PW12/DB), the Prosecutrix had told before the Denmark Authorities that on 15.01.2014, her clothes and belongings which were taken away from her were spread all around the place. It is thus argued that the said articles were later collected and planted on different Accused persons by the Investigating Agency.
144. On the basis of the aforesaid arguments, the defence thus prayed for acquittal of all SC No.35/14 State Vs. Mahender @ Ganja etc. 40/69 the Accused persons stating that the case of the Prosecution is false and fabricated and all the Accused persons have been falsely implicated in the case.
APPRECIATIION OF MATERIAL ON RECORD:
145. I have meticulously perused record and it is evident that on the written complaint of prosecutrix Ex.PW4/A, present FIR Ex.PW1/B was registered without any delay and the lady had given the vivid discription of the occurrence and number of offenders. It is also evident from the record that on reaching hotel, SI Anand found SHO Nabi Karim, SI Neeraj, SI Rajeev Gulati and other police staff of PS Nabi Karim alongwith complainant.
SI Anand had observed injury marks which were visible on her face, lips etc. Prosecutrix had handed over one handkerchief of 'badami colour' and she had stated that his handkerchief is of one of the rapists who had used it to make her smell glue. W/SI Pushpa converted the same into parcel and affixed the seal 'P' thereon, took the same into police possession through seizure memo Ex.PW19/A. Condition of the lady has also been described by the PW4 Kuldeep, Manager of the Hotel who encountered the prosecutrix after the incident when she returned to the Hotel.
146. It is further revealed that PW24 SI Pushpa reached Hotel Amex Inn on 14.01.2014 at about 10.30 p.m.11. p.m. and joined investigation with SI Anand, on reaching there, she found other police officials, she met prosecutrix who gave written complaint Ex.PW2/A, PW24 SI Pushpa made repeated request to PW12 for her medical examination but she refused, PW24 made endorsement Ex.PW24/A, handed over rukka to HC Daya Nand PW27 for getting FIR registered.
147. On perusal of record, it is further revealed that prosecutrix handed over one white colour torn top in dirty condition, multi colour long top also in same condition, one black colour seater, one black inner wear and lower which were converted into parcel and further were taken into police possession vide seizure memo Ex.PW19/A. SC No.35/14 State Vs. Mahender @ Ganja etc. 41/69
148. On perusal of record, it is further revealed that PW24 prepared the site plan (Ex.PW24/B) without scale with the help of PW2. It is further revealed that PW24 SI Pushpa took into police possession six used condoms having some liquid inside, the same which she found on inspection of the spot, six butts of the cigarette, some leaves on which white liquid was found, earth, some more leaves of Ashoka Tree, one stocking panty of light yellow colour, stocking of black colouor, one grey colour full sleeves cloth having some mud, one black rexine bag, one Tshirt having attached cap, lifted some garlands, used underwear, one multi colour piece of cloth appear to be of victim, one light yellow colour handkerchief having some white liquid thereon, they all were converted into parcels separately, seal 'P' was affixed thereon and were taken into police possession vide seizure memo Ex.PW19/C. Photocopy of the entry register of the Hotel was taken in to police possession ( Ex.PW4/B), copy of passport and one DVD Ex.PW4/P2 and she seized the same through seizure memo Ex.PW4/D.
149. On perusal of record it is further revealed that on 27.01.2014, statement of PW2 was recorded u/s 164 Cr.P.C. Ex.PW2/A by ld. MM Sh. Ajay Kumar. It is further revealed that on 31.01.2014, PW2 visited the PS and identified the photograph Ex.PW2/C of the victim lady who was gang raped by the accused persons.
150. On perusal of record, it is further revealed that PW2 participated in TIP conducted by ld. MM Sh. Ajay Kumar Malik and identified the knife used in this case Ex.PW2/P1 in judicial TIP Proceedings Ex.PW2/B.
151. On perusal of record, it is further revealed that complainant handed over the clothes which she was searing at the time of incident after getting the same changed to the IO. The clothes given by the complainant was seized vide seizure memo Ex.PW19/B. It is further revealed that complainant pointed out the place of occurrence with the help of DelhiAgraJaipur City Map vide Ex.PW4/C.
152. On perusal of record, it is further revealed that police examined PW12 about the place SC No.35/14 State Vs. Mahender @ Ganja etc. 42/69 of incident in presence of PW4 and she showed the place of incident but refused to go to place of incident in the city Road Map but refused to go to the place of incident with the police as she was perplexed and nervous.
153. It is further revealed that PW4 also handed over DVD Ex.PW4/P2 containing CCTV footage of reception area showing presence and movement of victim girl which was seized by IO through seizure memo Ex.PW4/D. On perusal of record, it is further revealed that PW5 SI Pankaj Incharge of Mobile Crime Team inspected the place of incident and prepared his SOC report vide Ex.PW5/A.
154. On perusal of record, it is further revealed that PW6 Sh. A.K. Gupta, Expert from Truth Lab has examined the complaint Ex.PW4/A with the handwriting of PW12 on brown paper envelope Ex.PW6/A and book Ex.PW6/B and prepared the report Ex.PW6/C, where he has opined that signatures on this documents are of the same person.
155. On perusal of record, it is further revealed that PW7 Sh. Ajay Kumar Malik, Ld. MM recorded the statement u/s 164 Cr.P.C. of PW2 Shivji through proceedings Ex.PW2/A on application of IO Ex.PW7/A and supplied the copy of statement of the witness to the IO on his request through application Ex.PW7/B.
156. It is also revealed that on 28.01.2014, PW26 Insp. Raj Kumar moved an application for conducting the TIP of the case property and the TIP proceedings were conducted by PW7 where PW2 has correctly identified the knife Ex.PW2/P1 and TIP proceedings vide Ex.PW2/B.
157. On perusal of record, it is further revealed that PW8 Insp. Mahesh Kumar Draftsman visited the spot on 22.01.2014 with PW19 SI Anand and took the measurement of the spot and prepared a scaled site plan Ex.PW8/A on 27.01.2014. Further on reaching Denmark, PW12 was medically examined there thoroughly and during her medical examination her photographs Ex.PW12/A1 to Ex.PW12/A10 were taken and police officials of Denmark SC No.35/14 State Vs. Mahender @ Ganja etc. 43/69 made inquiries from PW12. As per the evidence of IO Inspector Raj Kumar, the officials of Denmark were already informed about the incident and request was made for conducting the medical examination of the witness there. It is further revealed that PW12 identified the photographs of the spot Mark PW5/B1 to PW5/B30 during her examination as witness in the court.
158. On perusal of record, it is further revealed that PW13 namely Mr. Ramus Nielsen, Police Officer of Denmark met PW12 on 15.01.2014 at Copenhagen Airport and took her to State Hospital and she was examined in special ICU and her forensic medical examination was also done there.
159. On perusal of record, it is further revealed that the interview conducted by PW13 was taken on record in Danish Language Ex.PW13/A and its true English translation along with certificate of official translator is Ex.PW12/B, second interview of victim lady was done on 20.01.2014 and its record vide Ex.PW13/B, report prepared by PW13 on the basis of email sent by victim lady on 24.01.2014 and the report is Ex.PW12/DA.
160. It is further revealed that PW14 Ms. Britta Almfort took interview of victim lady and she found PW12 victim lady in very bad condition mentally and physically. She was medically examined by Dr. Steen Holger Hansen including DNA profiling and PW14 Ms. Britta Almfort identified the report of the Dr. Hanse Ex.PW14/A being familiar with handwriting and signatures of Dr. Hansen.
161. It is further revealed that at the time of Forensic Medical Examination of victim lady PW12, 10 photographs Ex.PW12/A1 to A10 were taken during medical examination at Copengagen which were developed through CD Ex.PW14/B.
162. It is further revealed that PW14 collected the DNA profile report from Department of Forensic Medicine, University of Copenhagen and Ex.PW14/C along with its English translation coupled with certificate of official translator. PW14 interviewed victim lady SC No.35/14 State Vs. Mahender @ Ganja etc. 44/69 PW12 on 07.04.2014 and the report is Ex.PW14/D along with English translation coupled with certificate of official translator. PW14 interviewed victim lady PW12 on 09.04.2014 and the report Ex.PW14/E along with English translation coupled with certificate of official translator.
163. It is further revealed that PW16 HC Ajay Kumar, photographer accompanied the Mobile Crime Team and had taken 30 photographs of the spot Ex.PW16/B1 to B30 and its corresponding negatives Ex.PW16/A1 to A30.
164. On perusal of record, it is further revealed that charge sheet was filed against nine accused persons, out of nine accused persons, trial was initiated against six accused persons and remaining three accused persons were declared juvenile.
165. On perusal of record, it is further revealed that I.O. had arrested accused persons namely Mahender @ Ganja, Mohd. Raja, Raju Bhajje, Arjun and Raju Chhaka, Shyam Lal @ Bhajni and conducted their personal search and recorded their disclosure statements. IO has also got conducted medical examination of all the accused persons.
166. On perusal of record, it is further revealed that during the course of investigation, one I Pod and one earphone lead, both white colour and Rs.800/ were recovered from the accused Mahender @ Ganja and seized vide seizure memo Ex.10/E, one spectacles case of brown (Mehroon) colour having black colour press button and Rs.1000/ were recovered from accused Mohd. Raja and seized vide seizure memo Ex.PW10/F, one Apple I Phone was recovered from accused Raju @ Chhakka and seized vide seizure memo Ex.PW10/J and in pursuance of disclosure statement of accused Arjun, one book kept in one brown coloured envelope of Jain Book Depot was recovered from accused Arjun and seized vide seizure memo Ex.PW19/P.
167. On perusal of record, it is further revealed that accused Mahender @ Ganja has got recovered one big knife underneath the busy by the side of the wall and I.O had prepared SC No.35/14 State Vs. Mahender @ Ganja etc. 45/69 the sketch of the knife vide Ex.PW19/Y and seized the same vide seizure memo Ex.PW19/Z.
168. On perusal of record, it is further revealed that potency test of accused persons namely Mahender @ Ganja, Mohd Raza, Arjun, Raju Chhakka and Raju @ Bhajji were conducted by the doctor.
169. On perusal of record, it is further revealed that during the course of proceedings, accused Shyam Lal @ Bhajni had expired, hence, proceedings against him was abated on 26.02.2016.
170. On perusal of record, it is further revealed that PW25 Sh. D.S. Paliwal, Sr. Scientific Assistant (Biology) of FSL, expert witness was assigned job to examine and opine the exhibits sent by police officials of this case. He examined the exhibits with the help of scientific equipments and gave following opinion:
DNA Profile from the source of exhibit '18e' (Blood sample of Mahender @ Ganja) is matching with DNA Profile from the source of exhibit 'A2b' (multicolour top), exhibit 'A3d' (condom), exhibit 'A3e' (condom).
DNA Profile from the source of exhibit '18e' (Blood sample of Mahender @ Ganja) is also matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (white colour top), 'A2c' (Sweater) & exhibit '29' (Blanket).
DNA Profile from the source of exhibit '31a' & '52' (Blood sample of Mohd.Chand) is matching with DNA Profile from the source of exhibit 'A3b' (Condom).
SC No.35/14 State Vs. Mahender @ Ganja etc. 46/69 DNA Profile from source of exhibit '31a' & '52' (Blood sample of Mohd.Chand) is also matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (while colour top), 'A2c' (Sweater), & exhibit '29' (Blanket).
DNA Profile from the source of exhibit '20d', exhibit '32' (Blood sample of Mohd.Raja), exhibit '22f' (Blood sample of Raju Bhajje @ Raju Bhagat), exhibit '24f' (Blood sample of Raju Chhakka), exhibit '26e' (Blood sample of Arjun), exhibit '28d', exhibit '28e' & exhibit '47' (Blood sample of Uvedullah), exhibit '63' (Blood sample of Shyam Lal @ Bhajani) & exhibit '65' (Blood sample of Sadakat @ Javed @ Chikna) is matching in mixed DNA Profile (DNA Profile from more than one person) from the source of exhibit 'A2a' (White colour top), 'A2c' (Sweater) & exhibit '29' (Blanket). This witness has proved his report vide Ex.PW25/A.
171. On perusal of record, it is further revealed that PW25 also deposed that he has also seen the report prepared by the Department of Forensic Medicine, University of Copenhegaen, exhibited as Ex.PW14/C (Colly) and he is of the opinion that on the broader aspect it may be observed that the same alleles has been indicated in certain loci like D3S1358, vWA, D16S539, D2S1338, D8S1179, D21S11, D18S51, D19S433, THO1, FGA and Amelogenin which are common in both reports i.e. report prepared by him after examination of the exhibits deposited by the Investigation Agency Ex.PW25/A and report prepared at Copenhegen Ex.PW14/C (Colly.)
172. It is further revealed that PW4 has identified the photograph of victim lady Ex.PW2/C available on court record and further the clothings of PW12.
SC No.35/14 State Vs. Mahender @ Ganja etc. 47/69
173. It is the submission of Ld. Defence counsel that prosecutrix has only identified the accused persons namely Mahender Ganja, Arjun and Raju Chhaka and remaining accused persons namely Mohd. Raja, Raju Bhajje @ Raju Bhagat and Shyam Lal @ Bhajni were not identified by the prosecutrix during her testimony in the court but all the accused persons are connected by FSL report in respect of semen found on the clothes of prosecutrix.
174. Before reaching at any conclusion, let the relevant sections i.e.342/366/395/397/376 D/412/506/34 IPC be reproduced, which are as under : Section 397 IPC:
"Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
Ingredients of offence. The essential ingredients of the offence under section 397 are as follows:
1) Accused committed robbery or dacoity;
2) While committing such robbery or dacoity the accused
a) used a deadly weapon;
b) caused grievous hurt to any person;
c) attempted to cause death or grievous hurt to any person.
Section 395 IPC:
Dacoity with murder. If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 366 IPC:
"Kidnapping, abducting or inducing woman to compel her marriage, etc - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or SC No.35/14 State Vs. Mahender @ Ganja etc. 48/69 knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Section 342 IPC:
Punishment for wrongful confinement. Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 412 IPC:
Dishonestly receiving property stolen in the commission of a dacoity. Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with (imprisonment for life), or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 376D IPC.
Gang rape. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine.
Section 506 IPC:
Punishment criminal intimidation - Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, if threat be to cause death or grievous hurt, etc. and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with SC No.35/14 State Vs. Mahender @ Ganja etc. 49/69 death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
175. For the purpose of charge for which accused persons has been charged, PW2 Shivji is very important witness for the purpose of this case.
176. From the close scrutiny of prosecution witness it has come on record that PW had seen the incident but he was put under threat on point of knife by accused Arjun. Due to this he could not intervene in the matter but later on when he reached his house and police approached him then he narrated the fact of the case to the police.
177. Ld. Amicus Cuarie has strongly disputed the presence of witness PW2 Shivji Singh whereas on the other hand Special PP has submitted that he was very much present and nothing had been elicited in his cross examination to disproved his presence.
178. Further, from the close scrutiny of testimony of this witness it has also come on record that he had seen all the accused persons since their childhood. Submission of Ld. Defence counsel that if PW2 was present on the spot he would certainly signed the seizure memo by the I.O. but no such question was put to this witness by Ld. Amicus Curiae for accused persons in his cross examination nor any suggestion was given to him. Hence, submission of Ld. Amicus Curaie that this witness was not present is no more relevance. I am fortified by a very recent judgment pronounced by our own High Court in criminal appeal No.749/2014 titled in Prahlad @ Pahalad @ Pappu Vs. The State (NCT of Delhi) pronounced on 27.05.2016 wherein the Lordship has categorically hailed that a witness cannot be condemned unless and until the question is not put to him in the cross examination. It would be proper to reproduce the portion of the judgment, which is as follows :
"12. It is cardinal rule of evidence that a witness cannot be SC No.35/14 State Vs. Mahender @ Ganja etc. 50/69 condemned unless incriminating material put to the witness in the cross examination. Having not cross examined the material prosecution witness on so called infirmity pointed out by appellant counsel. I find that prosecution case cannot be dented on account of so called infirmities"
179. Ld. defence has asked to PW24 W/SI Pushpa initial IO of this case in her cross examination as to why Shivji Singh PW2 was not joined as witness to the seizure memos. She has given rational answer to the question by saying that:
" I had tried to joined him in the proceedings when I was preparing the documents, but Shivji Singh refused by stating that he wants to sleep and also as he was afraid of the accused persons who are dangerous people."
180. Ld. defence counsel has taken another plea to convince the court about non presence of PW2 by making the arguments that the height of the wall is about 7 ft. and it was not possible for PW2 to witness the occurrence from other side of the wall. From the close scrutiny of this witness, it has come on record that he had seen the incident by climbing on the heap of the earth. Hence, this submission of Amicus Curiae has no relevance in defence of accused persons. Further, it would be pertinent to mention here that no such question was put to PW2 during his cross examination.
181. Furthermore, PW2 in his examination in chief itself has stated that he saw the incident after climbing on the heap of the earth as some construction was going on. Even after such specific assertion by the PW2 in his examination in chief the defence has not preferred to put any question.
182. This fact of PW2 is corroborated by testimony of PW5 ASI Pankaj Kumar who had inspected the scene of crime.
SC No.35/14 State Vs. Mahender @ Ganja etc. 51/69
183. The perusal of evidence of PW12 i.e. of the victim lady proves the alleged incident continued for about 5 hours and during this entire duration of 5 hours her mouth was not shut by the accused persons. She has stated in her evidence that she had also pleaded to the accused persons not to rape her as she was having AIDS. Further, she has also stated that during that 5 years till the incident lasted accused persons were running back and forth from the place of incident, sometime to buy glue for sniffing, to buy condoms. This evidence of victim clearly proves that she must have raised alarm which were over heard by eyewitness PW2 Shivji Singh.
184. Ld. defence counsel has also tried to impress by saying that prosecution has not proved that there was light available on the spot and in that light PW2 could see the occurrence. Again no such suggestion or question was put to the PW2 and photographs of the spot more particularly Ex.PW16/B3, B19, B28, B29, B30 clearly shows the lamp post and the lights affixed on the spot. Hence, the plea of the defence regarding non availability of light on the spot is falsified.
185. Furthermore, I found force in the submission made by Ld. Special PP that the PW2 is a natural witness and his presence cannot be doubted as his house is situated just near the spot. I also found force in his submission that he is a govt. official and remains in the govt. accommodation provided to him so his presence cannot be doubted as he is a natural witness and was found present by the investigating agency on their first visit at the spot. It is very natural that a person of his age and living lonely gets frightened easily and more particurly when a witness know about the character and antecedents of the culprits. It is also very natural explanation from the PW2 that he mustered courage on seeing the police official and narrated the entire incident to the police on the very first occasion.
IDENTITY OF THE ACCUSED PERSONS:
186. Ld. defence counsel has emphatically submitted that prosecution has failed to prove the identity of the all accused persons and on this score the accused persons deserve to be acquitted.
SC No.35/14 State Vs. Mahender @ Ganja etc. 52/69
187. On perusal of the case file, it is revealed that the victim lady has initially identified four accused persons namely Mahender @ Ganja, Arjun, Raju S/o. Om Prakash and Raju S/o. Bhagat Singh but again she had stated that she is not certain if the other two accused i.e. Mohd. Raja and Shyam Lal @ Bhajni (deceased) were also the offenders or not. Again, in the same sequence she has said that she is not 100% sure if accused Raju S/o Bhagat Singh was also one of the offender or not due to lapse of time. Thus, it is clear that she has very specifically identified three accused persons namely Mahedner Ganja, Arjun and Raju S/o Om Prakash. I found force in the argument made by Ld. Special PP that she has not stated that remaining three accused were not the offender but she has simply said that she is not 100% sure due to lapse of time. In regard to identity it is clear that PW12 in her very first report which she had made to the police on which FIR was registered she has stated about the invovlement of nine persons i.e. six adult accused who are being tried here and remaining three are juveniles. She had uttered about the same number of culprit even after reaching to her own country i.e. Denmark which has been asserted by PW13 Resmus Nileson and PW14 Ms. Britta which they have mentioned in documents prepared there and proved during this trial.
188. PW2 who happens to be a natural eye witness of the incident has categorically identified all the accused persons during the trial in the court. He has stated that name of each and every accused even in her statement recorded by police u/s 161 Cr.P.C. in the same night of the occurrence. Further, he had identified all the accused persons in the court. It is relevant to reproduce the evidence of PW2 regarding identity:
"Out of those nine persons, six are present today in the court. The witness has correctly identified all six accused persons pointing out individually and with their names also. I know all these accused persons as they are ruffians of the area and they reside and commit petty offences in the area."
189. Ld. defence counsel has tried to demolish the claim of identity by this witness by SC No.35/14 State Vs. Mahender @ Ganja etc. 53/69 putting question but this witness has categorically stated that he knows all these witnesses right from their childhood and due to this reason, he is able to identify all the accused persons clearly. It is important to reproduce cross examination of PW2 as under :
"I have seen accused persons right from their childhood. They used to roam around railway station and indulging in petty offences."
190. The recovery effected from the accused persons regarding whom PW12 victim has stated that she is not sure is another link to establish them with the present crime.
191. From accused Mohd. Raja one spectacles case of brown (Mehroon) colour having black press button and Rs.1,000/ have been recovered.
192. The most vital evidence to connect all these accused persons with this crime is the DNA report examined and proved by PW25 Mr. D.S. Paliwal, the expert from FSL, Rohini. The DNA is a individual characteristic of each individual and is most important thing for identity of an individual. The DNA profile generated from the clothes of prosecutrix seized from the spot and identified by her as the clothes which she was wearing on date and time of incident with the DNA profile generated from the sample of the accused persons taken during course of investigation. Taking of sample from accused persons except from accused Bhajni is not disputed by the defence. I am not dealing with the case of Shyam Lal @ Bhajni as he has already expired. Matching of DNA profile through DNA report i.e. Ex.PW25/A clearly connect the accused persons with commission of crime. Furthermore, it is very important to mention that as per request from Indian Govt. the victim lady was subjected to detail medical examination at Copenhagen and PW25 expert from FSL has clearly stated that similarity has been observed in the report prepared at department of forensic medicine, university of Copenhegen Ex.PW14/C and the report prepared by him i.e. Ex.PW25/A. He has further clarified in evidence the certain loci common in both the report, one prepared by him and another prepared at Copenhagen. He has categorically denied the suggestion given by the defence there is no SC No.35/14 State Vs. Mahender @ Ganja etc. 54/69 similarity in these two reports. Judicial notice can be taken that there is no possibility of any manipulation in medical examination and DNA report prepared at foreign country i.e. Copenhagen and no suggestion has been given by the defence in this regard also. On the the basis of the deposition of PW12 prosecutrix, PW2 Shivji, eyewitness, recovery effected from the accused persons and most importantly the scientific evidence of PW25 on the basis of report Ex.PW25/A and Ex.PW14/C there is no place of any doubt about identity of all the accused persons. As non other than these persons who had committed the gang rape upon the victim girl i.e. PW12.
MANIPULATION OF EVIDENCE UNDER MEDIA PRESSURE.
193. The defence has vehemently argued that accused has falsely implicated with this crime by the police under the pressure mounted by the media. I do not find any force in this arguments as the name of the accused persons has already surfaced in the intervening night of the incident itself. Police some time tries to manipulate the things, if the case remain unsolved for sufficient time but in the instant case, the case was solved after few hours of the incident and further , the eyewitness remain intact and nothing could be elicited from his lengthy cross examination by the defence.
194. Law with regard to the appreciatioin and number of witnesses to prove the case is very clear. As per bare provision i.e. 134 of the Indian Evidence Act , no particular number of witnesses shall in any case be required to prove a case. Hon'ble Supreme Court of India while interpreting this provision has very categorically clarified that on a consideratio of relevant authorities and provision of Indian Evidence Act the following proposition may be safely stated and firmly established :
1. As a general rule , a court can and may act on testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statue, courts should not insist on corrboration except in cases where the nature of testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for SC No.35/14 State Vs. Mahender @ Ganja etc. 55/69 example in the case of a child witness, or of a witness whose evidence is that of accomplish or of an analogus character.
3. Whether corroboration of testimony of single witness is or is not necessary must depent upon facts and the circumstances of each case and no general rule can be laid down in the matter like this and much depend upon the judicial discretion of the judge before whom the case comes. (Namdeo Vs. State of Maharashtra, Crl. Appeal No.914 of 2006 dated 13.3.2007 by Hon'ble Supreme Court)
195. I may take opportunity to summerise the allegation came on file against the accused persons which are as follows :
i. The evidence of the victim/prosecutrix which she has proved categorically and further her condition subsequent to the incident witnessed by the hotel manager PW4 who had seen the victim girl, her condition witnessed by the police officials of Copenhegan, Denmark i.e. PW14 and PW15, the clinching evidence of eyewitness PW2 Shivji Singh.
ii. The recoveries of robbed articles from accused persons for which they could not give any valid explanation.
iii. The DNA report one prepared at Copenhagen i.e. Ex.PW14/C and another Ex.PW25/A prepared in India.
196. As far as individual section of offence is concerned accused persons had forcefully dragged the victim girl towards the bushes by catching hold her hand and legs, was illegally confined, her belonging i.e. mobile phone, Ipod, cash, book, glasses, were robbed and she was criminally intimidated and she was also subjected to sexual assault by the culprit clearly proves the case u/s 366/34 IPC, 342/34, 395, 376D, 506/34 IPC against all the accused persons.
197. As far as section 25 Arms act is concerned, a knife was recovered from accused SC No.35/14 State Vs. Mahender @ Ganja etc. 56/69 Mahender which he was in possession without any authority, hence, accused Mahender @ Ganja is held guilty for offence punishable under section 25 Arms Act.
198. Since prosecutrix herself had identified three accused persons namely Mahender @ Ganja, Arjun and Raju Chhakka in the court by their faces and remaining three accused persons namely Mohd. Raja, Raju Bhajje and Shyam Lal @ Bhajni have been proved by FSL report by their semen found on floral top of the victim. Ld. Amicus Curiae could not reply to this fact as to how semen of three accused persons come on floral top of the victim.
199. Further, MLC of the victim conducted at Copenhagen also corroborate with the FSL report and indicate that no other persons except the accused persons identified the victim and established by FSL report that were involved in the crime.
200. Specifically in this very case at the fag end of trial i.e. at the time of their examination u/s 313 Cr.P.C. all the accused persons except accused Shyam Lal @ Bhajni (deceased) have taken a plea in order to justify the presence of semen on the spot by saying that they had called a prostitute one day prior to the incident and they had enjoyed sex with her. This plea was taken for the first time during the examination u/s 313 Cr.P.C. but no question was put even to the I.O. nor even suggested to I.O. Otherwise also this was even the exclusive knowledge of accused persons.
201. As per settled law section 105 and 106 of Evidence Act, it was onus on the part of accused persons to prove this fact which was especially within their knowledge. Despite given opportunity to lead defence evidence they have not examined any witness in defence nor tendered themselves as witness as per provisions of u/s 315 Cr.P.C. I am fortified with the plethora of judgments in this regard, if any defence is taken by the accused, they must prove and if they failed to prove the same they should be additional strength to the prosecution case. Thus, the plea taken by the accused persons to justify presence of their semen on spot is nothing but bundle of falsehood and after thought. In this very case the SC No.35/14 State Vs. Mahender @ Ganja etc. 57/69 evidence of Shivji Singh (PW2) is very cogent, reliable and trustworthy and there is no reason to discard his version as nothing could be ellicited in his lengthy cross examination by defence. His testimony is further corroborative from the testimony of prosecutrix (PW12) and medical/scientific evidence. FIR has been registered without delay and names of accused persons have also been revealed within the span of some hours after the incident. So interpolation or falsity in the case is out of even imagination.
202. On careful scrutiny of file, in short following incriminating evidence has come against the accused persons to connect them with the crime:
i. PW2 Shivji Singh, eyewitness, PW12 Prosecutrix and PW4 Kuldeep Singh, Manager of the Hotel completely proved that incident of gang rape and other offences has occurred in the night of 14.01.2014.
ii. Accused persons have been categorically identified as offenders by PW2 Shivji Singh, eyewitness and he undoubtedly a trustworthy and cogent witness and his presence is very well proved on the spot being Government employee and having government accommodation near the spot.
iii. PW12 Prosecutrix has categorically identified three accused persons namely Mahender @ Ganja, Arjun and Mohd. Raza and she has not at all denied that involvement of other accused rather simply stated that she is not 100% sure but again she has stated on suggestion given by the prosecution that they may be or may not be the offenders. Their involvement is proved beyond reasonable doubt through the scientific evidence i.e. the DNA report.
iv. The names of accused persons has surfaced within few hours of the occurrence and that too from independent witness so chances of false implication is missing.
SC No.35/14 State Vs. Mahender @ Ganja etc. 58/69 v. The case property have been recovered either from the accused or at the instance
of the accused and those case properties have been duly identified by the witness. The case properties of such nature which cannot be planted on the accused. Furthermore, in this very case admittedly a foreigner lady had left for her country in the intervening morning of incident itself and she came back to India only at the time of her deposition. vi. Accused persons were subjected to the medical examination and they have also not disputed their medical examination as well as collection of samples by the doctors. The DNA profile was generated from clothings of the victim girl which was seized from the spot in the night of incident itself and those DNA profile matched with the DNA profile generated from the samples of accused persons. Thus, it is clear that accused persons are the offenders who committed the offence.
Vii. Accused persons had taken a plea to falsify the claim of prosecution about presence of their semens on the clothes of prosecturix that they had hired a prostitute one day prior to the incident and had enjoyed sex with her but this it was onus on the accused to proved this fact but they have completely failed to discharge their onus.
Viii. Accused persons have not given any explanation to the incriminating evidence put to them in their examination under section 313 Cr.P.C. Mere denial would not suffice.
ix. Accused persons have not given any reason as to why a foreigner lady and independent person would falsely implicate them in such heinous case who has got no relation with them nor they would have obtained anything by falsely implicating them.
x. As per expert witness PW25 Sh. D.S. Paliwal, he has found similarities between the DNA report prepared by him and the DNA report prepared at Denmark. He has pointed out the common allelles in both the reports.
SC No.35/14 State Vs. Mahender @ Ganja etc. 59/69
203. Accordingly, the material available on record establishes following facts without iota of any doubt against the accused persons:
i. All the accused persons had kidnapped the prosecutrix with motive to force her for illicit intercourse. Hence, all the accused persons are held guilty for offence punishable u/s 366/34 IPC.
ii.All accused persons had confined prosecutrix in their illegal confinement for about five hours. Hence, accused persons namely Mahender @ Ganja, Mohd. Raja, Raju Bhajje, Arjun and Raju Chhaka are held guilty for offence punishable u/s 342/34 IPC.
Iii.Accused persons are more than five while committing robbery and they robbed belongings of complainant PW12 including mobile phone make 'Apple' along with Sim, I pod, watch, book, glasses with cover and cash 750 Euro and Rs.3,000/ of the prosecutrix. Hence, they have committed offence punishable u/s 395 IPC. Accordingly, they are held guilty for offence punishable u/s 395 IPC.
iv.Further all the accused persons involved in commission of gang rape and all had participated actively. Hence, all the accused persons are held guilty for offence punishable u/s 376D IPC.
v. Accused persons extended threat to kill the victim and thus committed criminal intimidation. Hence, all accused persons are held guilty for offence punishable u/s 506II/34 IPC.
vi.Further, accused Arjun had used deadly weapon i.e. dagger while robbing with prosecutrix. Hence, accused Arjun is held guilty for offence punishable u/s 397 IPC and recovery of one book titled as "Lonely Planet, Delhi" of prosecutrix has been effected from accused Arjun and recovery of one mobile phone make Apple I phone of prosecutrix SC No.35/14 State Vs. Mahender @ Ganja etc. 60/69 has been effected from accused Raju Chhaka. Hence, accused persons namely Arjun and Raju Chhaka are held guilty for offence punishable u/s 412 IPC.
204. Before parting with the judgment, I would like to record my deep appreciation about the investigation conducted by Inspector Raj Kumar, the then SHO P.S. Paharganj. The case was cracked within the shortest possible time which would definitely strengthen the believe of tourists, particularly foreign travelers in the Judicial System of the Country. At the same time, I would like to place on record my deep praise for Ld. Special PP, Sh. Atul Kumar Shrivastava, who appeared and presented the case of State and he rendered his full assistance in fair and impartial manner to lead to the logical and just conclusion of the present case.
205. Matter be listed for argument and order on the point of sentence on 09.6.2016.
PRONOUNCED IN THE OPEN COURT ON 06.06.2016 (RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.35/14 State Vs. Mahender @ Ganja etc. 61/69
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
SC No. 35/2014
FIR No. 17/14
State V 1. Mahender @ Ganja S/o Sh. Sat
Narayan R/o. Vegabound New Delhi
Railway Station, Delhi.
Permanent Address: Village
Hasanpur Kasar, PSSultanpur
Ghosh, Distt. Fatehpur, U.P. (In JC)
2.Mohd. Raja s/o Mohd. Tahir, R/o.
Vegabound New Delhi Railway
Station, Delhi. (In JC)
3.Raju Bhajje @ Raju Bhagat S/o
Bhagat Singh, R/o. Vegabound New
Delhi Railway Station, Delhi.(In JC)
4.Arjun S/o. Lt. Hari Om R/o.
Vegabound New Delhi Railway
Station, Delhi.(In JC)
5. Raju Chhaka S/o. Late Om Prakash
R/o. Vegabound New Delhi Railway
Station, Delhi.(In JC)
6. Shyam Lal @ Bhajni S/o. Dukhi
Ram, Vegabound New Delhi Railway
Station, Delhi.
Permanent Address: Vill. Bhagyania
Nagar, PS Uska Bazar, Distt. Basti,
U.P.
(Proceedings against this accused has
been abated vide order dated
26.02.2016)
SC No.35/14 State Vs. Mahender @ Ganja etc. 62/69
SC No. 35/2014
Police Station Paharganj
Convicted under section 376D/366/342/395/397/412/506/34 IPC
and 25 Arms Act.
ORDER ON SENTENCE:
10.06.2016
Present : Sh. Atul Srivastava, Ld. Special PP for the State.
All convicts produced from JC.
Sh. Dinesh Kumar Sharma, ld. Amicus Curiae for convict
Mahender @ Ganja, Mohd. Raja, Raju Bhajje, Arjun and Raju
Chhaka
Arguments heard on point of sentence.
Ld. Special PP for the State submits that all the convicts must be awarded the maximum sentence in each offences for the following reasons :
I. Convicts have committed the offence in most barbaric and inhuman manner and they have used not only the intoxicant and weapon of offence also at the time of satisfying their lust. They did not allow the prosecutrix rescue from their clutches and she was subjected to sexual assault forabout five long hours and in the manner in which offences have been committed. She could have expired also but the accused did not show any mercy towards her and even the plea taken by the prosecutrix that she is suffering of AIDS that also did not deter the convicts from desisting themselves from such act.
ii. Convicts torn the clothes of the prosecutrix and those clothes were thrown here and there.
Iii. Convicts are the Indian and despite knowing the Indian Philosophy "atithi devo bhava" (Guests are God) and "yatra nari pujyate tatra ramante devta" (Where the ladies are worshiped God dwells). They committed such offence and that too in a barbaric and cruel manner and she was treated like a animal just for satisfying their lust and robbed for SC No.35/14 State Vs. Mahender @ Ganja etc. 63/69 satisfaction to fulfill their bad habit.
iv. Convict Mahender @ Ganja is having criminal history and he has been involved in more than six cases and accused Raju Bhajje is also involved in criminal cases despite remaining in jail they have not improved themselves thus there are no chances of their improvement, hence, they deserve maximum sentence.
Ld. Special PP for the State has put stress for maximum sentence for convicts on the basis of the judgments as follows :
I. Prahlad and Anr. Vs. State of Haryana, Criminal Appeal No.983 of 2015; wherein it has held that :
"It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for ther other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate........"
ii. State of M.P. Vs. Madanlal, Criminal Appeal No.231 of 2015, wherein it has held that :
"16. The aforesaid view was expressed while dealing with the imposition of sentence. We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of woman which is her own temple.
These are offences which suffocate the breath of life and sully the reputation..... Dignity of a woman is a part of her non perishable and immortal self and no one should everthink of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matter the most."
iii. Sanjiv Kumar @ Gora Vs. State of Punjab, Criminal Appeal No.1424 of 2009, wherein it has held that :
"We are of the view that sentencing for any offence has a SC No.35/14 State Vs. Mahender @ Ganja etc. 64/69 social goal. In each case, facts and circumstances of that case are always required to be taken into consideration. For the purpose of just and proper punishment, not only the accused must be made to realize that the crime was committed by him, but there should be proportionality between the offence committed and the penalty imposed. It is obligatory on the part of the Court to keep in mind the impact of the offence on the Society, and its ramifications including the repercussion on the victim."
Ld. Special PP for the State further submits that by imposing maximum sentence to the accused persons a message must be given to the world that rule of law is still prevail in India as this case has a worldwide ramification. Acts of convicts caused a serious dent to the reputation of India in the world.
On the other hand ld. Amicus Curiae for convicts prayed that convicts are vagabonds. Ld. Amicus Curiae further submits that convict Mahender @ Ganja is aged about 25 years, convict Arjun is aged about 21 years, convict Mohd. Raja is aged about 23 years, convict Raju Chhaka is aged about 30 years and Raju Bhajje is aged about 23 years.
Ld. Amicus Curiae for convicts further submits that due to poor family background they could not entertain a good family life and it is the responsibility of State for welfare of such kind of persons.
Ld. Amicus Curiae further submits that Mohd. Raja is married and having two sons aged about 4 years and 2 ½ years respectively.
Ld. Amicus Curiae further submits that minimum punishment for section 376 D is 20 years and this sentence would meet the ends of justice and there is chances for reformation of convicts. He has further submitted that minimum sentence be imposed on the convicts for the other offences also.
I have considered the rival submissions, perused the record and the judgments cited by the Ld. Special PP for the State. I would like to cite a recent pronouncement SC No.35/14 State Vs. Mahender @ Ganja etc. 65/69 pronounced by Hon'ble Supreme Court in titled as State Vs. Saurabh Bakshi, (2015) 5 SCC 182, wherein the Hon'ble Apex Court quoted the eminent thinker and author Sophocles as under :
"Laws can never be enforced unless fear supports them."
Hon'ble Apex Court further observed that :
"Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every rightthinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If anyone defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognizes."
Hon'ble Supreme Court in case title as "Gopal Singh Vs. State of Uttrakhand, (2013) 7 SCC, 545", Hon'ble Apex Court has opined that just punishment is the collective cry of the society. While the collective cry have to be kept upper most in the mind simultaneously the principle proportionality between the crime and punishment cannotbe totally brushed aside. The principle of just punishment is the bed rock of sentencing in respect of criminal offence. A punishment should not be ......."
In the judgment titled as State of Punjab Vs. Bawa Singh (2015) 3 SCC 441, the Hon'ble Apex Court laid down that :
"16.... It is duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
In this case State of Punjab vs. Bawa Singh (supra), the Hon'ble Apex Court relied upon the judgment of Dhananjay Chatterjee vs. State of W.B. (1994) 2 SCC 220, where it had observed :
"... In our opinion, the measure of punishment in a given case must depend upon the atrocity of SC No.35/14 State Vs. Mahender @ Ganja etc. 66/69 the crime, the conduct of the criminal and the defencies and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public adhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering the imposition of apropriate punishment."
Hon'ble Apex Court also relied upon the judgment of Ahmed Hussein Vali Mohammed Saiyed vs. State of Gujarat, 7 (2209) 7 SCC 254, where it was observed as follows :
"99. ...... The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence."
Thus it is clear as guided by the Hon'ble Apex court of the land that that punishment needs to be proportionate to the nature and magnitude of the offence. It is essential for the court to ensure that adequate and just punishment, befitting the crime, is imposed upon the convict, keeping in view the atrocity of the crime, the manner in which it was committed and the defenceless state of the victim. On perusal of record, it has come on record that the manner in which offence has been committed by the accused persons in this case is certainly inhuman and the victim lady, a foreigner lady who had come in India to visit with a faith that she would safe in India while visiting the place and since she was returning back to her hotel and she got confused the way and being asked from the accused despite of the help the accused persons mislead the victim and abducted her and committed rape in brutal manner to satisfy their lust and rob her belonging. It was for the convicts to respect the lady especially when she was tourist which is also source of money generation for our country and by doing this act the convicts have levelled stigma on the face of the country. They do not deserve for any leniency. She had been subjected to such inhuman act continuously for long five hours and during these period she was given beatings when she tried to save herself. Accused persons did not show any mercy when she was saying that do not rape her as she was having AIDS.
Hence, considering the conduct and act of all the convicts and submissions of the parties, I am of the opinion that ends of justice would meet if the convicts namely Mahender @ Ganja, Mohd. Raja, Raju Bhajje, Arjun and Raju Chhaka are sentenced as under:
SC No.35/14 State Vs. Mahender @ Ganja etc. 67/69 a. For offence punishable under section 376D IPC, the above named convicts are
sentenced to undergo Rigourous Imprisonment for life which shall mean imprisonment for the remainder of convicts natural life, in addition to payment of fine of Rs.50,000/ each, in default whereof, they shall undergo Simple Imprisonment for 02 years.
b. For offence punishable under section 366/34 IPC, the above named convicts are sentenced to undergo Imprisonment for 10 years, in addition to payment of fine of Rs.5,000/ each, in default whereof, they shall undergo Simple Imprisonment for 02 years.
c. For offence punishable under section 342/34 IPC, the above named convicts are sentenced to undergo Imprisonment for 01 year, in addition to payment of fine of Rs.1,000/ each, in default whereof, they shall undergo Simple Imprisonment for 03 months.
d. For offence punishable under section 395 IPC, the above named convicts are sentenced to undergo Rigourous Imprisonment for 10 years, in addition to payment of fine of Rs.20,000/ each, in default whereof, they shall undergo Simple Imprisonment for 01 year.
e. For offence punishable under section 506 PartII/34 IPC the above named convicts are sentenced to undergo Imprisonment for 07 years, in addition to payment of fine of Rs.5,000/ each, in default whereof, they shall undergo Simple Imprisonment for 01 year.
Further, for offence punishable under section 25 of Arms Act, the convict Mahender @ Ganja is sentenced to undergo Rigourous Imprisonment for one year, in addition to payment of fine of Rs.10,000/, in default whereof, he shall undergo Simple Imprisonment for 03 months.
Further, for offence punishable under section 412 IPC, the convicts Arjun and Mohd. Raja are sentenced to undergo Rigourous Imprisonment for 10 years, in addition to payment of fine of Rs.10,000/ each, in default whereof, they shall undergo Simple Imprisonment for 01 year.
SC No.35/14 State Vs. Mahender @ Ganja etc. 68/69 Further, for offence punishable under section 397 IPC, the convict Arjun is sentenced to undergo Rigourous Imprisonment for 07 years, in addition to payment of fine of Rs.10,000/, in default whereof, he shall undergo Simple Imprisonment for 01 year.
All the sentences shall run concurrently against convict qua offences against for which they have has been convicted. Benefit of section 428 Cr. P.C. be also given to the convicts. Accordingly, sentence is awarded. Fine not paid.
Since the accused persons are poor persons so they are not directed to pay compensation to victim lady, however, copy of the judgment and order of sentence be sent to DLSA to consider the case and decide the suitable compensation to be awarded to the victim lady who may be compensated as per the provisions of section 357A (2) of Cr.P.C.
Copies of the judgment along with sentence order be given to the convict forthwith free of cost.
PRONOUNCED IN THE OPEN COURT ON 10.06.2016 (RAMESH KUMARII) ASJ/SFTC2(CENTRAL), TIS HAZARI COURTS, DELHI.
SC No.35/14 State Vs. Mahender @ Ganja etc. 69/69