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1. By this appeal, the appellants challenge the impugned judgment dated 27th March, 2015 and the order on sentence dated 30 th March, 2015 whereby the appellants were found guilty and directed to undergo rigorous imprisonment for 5 years along with fine of ₹10,000/- in default whereof, simple imprisonment for 2 months for offence punishable under Section 365/34 of the Indian Penal Code, 1860 ("IPC"); rigorous imprisonment for 2 years for offence punishable under Section 356/34 IPC; rigorous imprisonment for 30 years along with fine of ₹40,000/- in default whereof, simple imprisonment for 6 months for offence punishable under Section 376D IPC; and also rigorous imprisonment for 2 years for offence punishable under Section 506 IPC. Appellant Dinesh was also found guilty By:JUSTICE MUKTA By:POONAM BAMBA GUPTA 2023:DHC:4288-DB for offence punishable under Section 411 IPC and was directed to undergo rigorous imprisonment for 2 years.

5. Learned counsel for the appellants assails the impugned judgment on the ground that the learned Trial Court did not rightly appreciate the evidence on record and wrongly convicted the appellants, and thus, prayed that the impugned judgment be set aside and the appellants be acquitted of all charges. It was contended that the appellants have been implicated due to mistaken identity. It was the case of the prosecution that the appellants were arrested on the basis of identification of the house by the victim, however, the victim herself denied this factum of identification of house. Even in her statement under Section 164 of the Code of Criminal Procedure, 1973 ("Cr.P.C."), as well her examination-in-chief, the victim stated that one of the appellants used to bend her downwards in the car so that she does not get to know the place where she was taken, and therefore, it would be highly improbable for such person, more so being a foreigner, to identify a house By:JUSTICE MUKTA By:POONAM BAMBA GUPTA 2023:DHC:4288-DB situated way inside a colony. It was further contended that as per the DNA Report (Ex.PA), the DNA profile of the semen found on the undergarments and the other clothes of the victim did not match with the DNA profile of the appellants. Even as per the MLC of the victim, no external injuries were found on her body. Reliance was placed on the decision in (2010) 9 SCC 747 Santosh Kumar Singh v. State, to contend that the court cannot substitute its opinion with that of an expert in science such as DNA profiling and thus, the Trial Court erred in not relying upon the DNA report. It was further contended on behalf of the appellants that they had rightly refused the TIP as not only their photographs were shown to the victim, but that from the cross examination of WSI Vinod (PW-20), it is evident that the appellants were arrested in victim‟s presence. It was further contended that the conviction in the present case rests merely on the uncorroborated testimony of the victim, and there is no other evidence on record to connect the appellants with the crime. It was also submitted that conviction cannot be based on this sole uncorroborated testimony of the victim, especially when she was herself unable to depose. It was also submitted that both the learned Magistrate who recorded the statement under Section 164 Cr.P.C. and the Trial Court erred in recording the statement of the victim with the help of a translator, as such procedure is not warranted by the Code of Criminal Procedure. It was submitted that the statements should have been recorded verbatim. It was also pointed out that the translator herself admitted that she was not a qualified translator. It was also pointed out that as the prosecutrix herself stated that she was unable to understand the contents of any document including her statement (Ex.PW-2/A) and By:JUSTICE MUKTA By:POONAM BAMBA GUPTA 2023:DHC:4288-DB therefore, no sanctity could be given to any such document. It was contended that even Sunita (PW-11) who was the owner of the house where the incident allegedly took place, did not support the case of the prosecution and stated that she was present in the house at the relevant time and that no one came to the house on that day.

11. Ajay Vashisth (PW-18), the husband of Sunita corroborated her version and was also declared hostile. In his cross-examination, he admitted to have told the police that appellant Raj Kumar was running a shop by the name of „Sharma Electronics‟ in Furniture Market, Nangloi Road, Najafgarh.

12. IO/WSI Vinod (PW-20) deposed that at about 8.30 AM on 19th June, 2014, she was called to the police station Dwarka North by the SHO. On reaching the police station, she found the prosecutrix present there and she recorded her statement (Ex.PW-2/A) and prepared the rukka (Ex.PW-20/A) and got the FIR registered. Thereafter, she got the prosecutrix medically examined at the DDU Hospital. The prosecutrix led the police team to Dass By:JUSTICE MUKTA By:POONAM BAMBA GUPTA 2023:DHC:4288-DB Garden Area at Uttam Nagar to locate the house where she was raped and to trace the assailants, but she was unable to locate the house. Thereafter, IO collected the CDRs of both the mobile numbers of the prosecutrix. Statement under Section 164 Cr.P.C. of the prosecutrix was also got recorded on 21st June, 2014. On the same day, she along with her team and the prosecutrix again went to the Deep Enclave Part-II Uttam Nagar in search of the appellant and after intense search, the prosecutrix was able to locate the house where she was raped. It was House No.43, Gali No.4, Deep Enclave, Part-II, Uttam Nagar. Upon entering the house, the prosecutrix pointed out the room where she was raped and at her instance, bed-sheet spread on the diwan in the room was seized (Ex.PW-13/A). After making inquiries from the owner of the house, Shri Ajay Sharma, told her that he along with his family had gone to Hapur for a marriage on 18th June, 2014 and returned on 20th June, 2014 and that he had handed over the keys of his house to the appellant Raj Kumar. Thereafter, she went to the shop of Raj Kumar and arrested him (Ex.PW-15/A) and recorded his disclosure statement (Ex.PW-15/C). Thereafter, appellant Raj Kumar took them to the house of appellant Dinesh i.e. House No.1280, near Krishna Mandir, Najafgarh, from where Dinesh was arrested ((Ex.PW-15/D) and his disclosure statement (Ex.PW-15/F) was recorded. She further stated that the white colour Wagon-R car bearing RC No.DL 1YB 5450 was recovered from the house of Raj Kumar (Ex.PW-15/H). Thereafter, appellant Dinesh led the police party to the drain at Jai Vihar where he had thrown the mobile phone and purse of the prosecutrix but none of the articles could be By:JUSTICE MUKTA By:POONAM BAMBA GUPTA 2023:DHC:4288-DB recovered. She stated to have prepared the site plan of the house (Ex.PW20/A).

28. Appeal is accordingly disposed of.

29. Copy of the judgment be uploaded on the website of this Court and be also sent to the Superintendent, Tihar Jail for intimation to the appellants, updation of records and necessary compliance.

(MUKTA GUPTA) JUDGE (POONAM A. BAMBA) JUDGE JUNE 26, 2023 'vn' By:JUSTICE MUKTA By:POONAM BAMBA GUPTA