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My name is (the deceased victim) d/o. Bipinbhai Ambalal Joshi, aged 24 years, occupation service, resident of 10, Indrabaug Society, Behind Panchsheel Bus Stand, Near Ramesh Park, Naranpura, Ahmedabad, mobile number 8616661. Having remained present personally I declare by this complaint, being recorded that I reside along with my parents, brother and sister. I am working at the office known as 'Job Solution' situated at Devpath Office, C.G. Road, Ahmedabad.

Yesterday, at about 10:00 p.m. of 31.12.2003 while I was at my residence, a phone call came from my friend residing at Shahibaug area namely Chandan Pannalal Jaiswal (A-3) who told that his party is ready and I should immediately reach to Ashok Palace (the place of incident). Since my elder sister Vaishali was present at the residence, she dropped me at under-bridge on her two wheeler Kinetic from where I rang up Sajal Jain (A-4) residing at Delhi, came from Delhi and told him that I was standing near under-bridge and that he should pick me up. Because of this, within some time a friend of Sajal named Monty whose original name is Sugam Harishnkar Jaiswal (A-1) residing at Kirannagar Society, Dudheshwar known to me by name, came in his Maruti Zen at under-bridge. I sat in his Maruti Zen car who carried me in his car bearing registration no.GJ-1-HB-1267 from under-bridge to Hotel Ashok Palace. At Ashok Palace friend of mine Sajal Jain (A-4) and Chandan Pannalal Jaiswal (A-3) and one Montu (A-12) who too was friend of Sajal and residing at Delhi and Chandan's brother Mandan Jaiswal (A-2) were present. Chandan told me that his friend would come soon carrying the passes. Sajal Jain and the above named friends sat in room No.106 of Ashok Palace where Sajal ordered for beer. When beer was brought, I was told by Sajal to consume a little beer. I declined to that and Sajal then asked me what is the objection as we are to go to party where so many girls would come who also might have consumed. By saying so and upon persuasion, I consumed one peg of beer. Thereafter, since I declined to consume more beer, Sajal gave me 2.3 slaps and on pressurizing me I was made to take 2-3 more pegs of beer. At this time, Sajal and his friend Montu remained present in the room and others went down. Sajal told me to remove my clothes. I declined and said that I would like to talk to my sister Vaishali. In response to which, Sajal had beaten me by slapping me and Montu went out. Sajal slapped me and forcefully removed the clothes worn by me and had intercoursed with me by force and after intercoursing me, Sajal had telephoned Chandan, hence, Chandan came into the room and in presence of Sajal, Chandan, Karan had intercoursed me by force in their presence. All the three have injured me on my breast, back and shoulders by teeth bites while intercoursing me applying force and thereafter, Mandan brother of Chandan also came in the room who too had intercoursed me by force and that thereafter, what has happened is not known to me. I came at Shahibaug Police Station on gaining consciousness with my sister Vaishali to lodge this complaint.

The aforesaid now leads us to examine the evidences on record, including the defence witnesses showing the involvement of the persons in commission of crime i.e. gang rape or otherwise.

The first evidence, which deserves to be considered, is the declaration made by the victim during her lifetime before the police in the complaint (Exh.283). As observed by us earlier, the complaint could be termed as dying declaration falling under Section 32 of the Evidence Act and further as observed and found by us, the complaint was made by the victim herself and not by her sister, Vaishali (PW-3). Under these circumstances, the declaration made by the victim by way of complaint before the police would assume great evidentiary value. The declaration so made in the complaint (Exh.283) by the victim shows that, as per the victim, A-3 had invited the victim for a party and had asked her to reach Ashoka Palace. Her sister dropped her at under-bridge on two-wheeler and thereafter she was picked up by A-1 in his Maruti Zen Car bearing Registration No.GJ-1-HB-1267 from under-bridge and accordingly the victim and A-1 reached Ashoka Palace. At hotel Ashoka Palace, A-4, A-3, A-12 and A-2 were present. A-3 told the victim that his friend would be coming soon with passes. Thereafter, A-4 and all his other friends namely; A-2, A-3, A-12 sat in the Room No.106 of Ashoka Palace, where A-4 ordered beer. As per the victim, when beer was brought, she was told by A-4 to consume a little beer, which was declined by the victim and thereafter, A-4 again insisted and upon his persuasion, the victim had consumed one peg of beer. As per the victim, since she declined to consume more beer, A-4 gave two to three slaps and pressurized her to take 2 to3 more pegs of beer. When the aforesaid incident had happened, A-4 and A-12 were present in the room and others went out. A-4 told the victim to remove her clothes, which was declined by her and she insisted to talk to her sister Vaishali (PW-3). In response thereto, A-4 had beaten her by slapping and at that time, A-12 went out. Thereafter, as per the victim, A-4 slapped her and forcibly removed her clothes and had intercourse with her by force. As per the victim, after intercourse with her, A-4 telephoned A-3, who came into the room and in presence of A-4, A-3 and A-12 had intercourse with her by force. As per the victim, three injuries were caused on her Brest, her back and shoulder by teeth bite while having intercourse with her by applying force. As per the victim, A-2 thereafter came into the room and he also had intercourse with her by force. As per the victim, thereafter what happened was not known to her as she was not in conscious condition and after gaining consciousness, she reached Shahibaug Police Station with her sister to lodge the complaint. The aforesaid declaration before the police in presence of the police officer is duly proved by the prosecution as per the evidence of PSI, Mr.Taral (PW-43) (Exh.282).

(b) The aforesaid aspect of evidence led by the prosecution sufficiently proves the involvement of A-1 in commission of rape beyond reasonable doubt coupled with the aspect of multiple injuries found on the body of the victim for applying force upon the victim.

A-4

(a) He has admitted having intercourse with victim even in the medical history. DNA Report shows that the semen found from incriminating material matching the semen of A-4. In the medical history the presence of victim having brought to Ashoka Palace is proved. Once the sexual intercourse is proved and rather admitted in the medical history by A-4, but only stating that the intercourse was with consent is unbelievable on the face of it, because of such multiple injuries found for applying force upon the victim for vigorous sexual assault. Therefore, it can be said that the involvement of A-4 for the rape is proved. It may be stated that the attempt is made to state that there was love affair of the victim with A-4, which even if accepted at the face value, by no stretch can be considered as a licence or permission to have sexual intercourse by compelling the victim to consume liquor and to apply force for a sexual intercourse with the sexual assault. The most important aspect is that the victim during her lifetime has made declaration before the police in the complaint that A-4 had slapped and beaten her and compelled her to consume beer and alcohol and also for sexual intercourse. The victim in the said declaration has further stated that after committing rape, A-4 telephoned to Chandan (A-3) and hence, A-3 came into the room and in presence of him, A-3 and A-12 had intercourse with the victim by force and thereafter A-2 also came into the room and had intercourse with her by force. The injuries as stated in the declaration by the victim are getting full support from the medical evidence. Therefore, the involvement of A-4 is proved by the prosecution in the incident of commission of rape. Not only that but A-4 could be said as one of the prime accused for the whole incident of gang rape.

(a) The victim, in her declaration made before the police in the complaint, has already stated that initially A-3 had invited her for a party and that A-3 had intercourse with her by force in presence of Sajal (A-4) after A-4 telephoned A-3 and he came to the room. The victim in her declaration has also stated that A-2 came later on in the room and had also intercourse with her by force. The medical evidence supports the aforesaid declaration made by the victim and of violent sexual assault for intercourse with force. It deserves to be recorded that A-3 and A-2 are the sons of the owner of the hotel Ashoka Palace. As considered by us and observed herein above, the so-called subsequent declaration made in the application dated 3.1.2004 by the victim for stating the names of only A-1, A-4 and A-12 and not stating the names of A-2 and A-3 in the incident, in our view, could not be termed as a declaration to dilute the evidentiary value of the main declaration made in the complaint before the police, which is duly proved, more particularly because the said application had not come up on record, nor the circumstances under which the application was made by the victim had come up on record. The attempt was made on behalf of A-2 and A-3 to prove alibi in two ways; one is by making the witness police officer to produce the mobile telephone printout from the respective mobile companies and thereby a defence is sought to be raised that the Investigating Officer has tampered with the record and has frustrated the evidence of alibi of A-2 and A-3. It was also submitted that neither all correct data were not produced, nor the Investigating Officer made an attempt to collect binary data from the mobile company in order to find out the presence of A-2 and A-3 at or nearby Ashok Palace or not. It was submitted that under these circumstances, since the investigation has not been conducted in a fair manner to bring about the truth before the Court, the prosecution case should be disbelieved against A-2 and A-3 based on the evidence led by the prosecution itself, apart from the evidence produced by A-2 and A-3 through their defence witnesses and, therefore, the benefits should be made available to A-2 and A-3.