CRL.A./93/2015 of USMAN @ KALE & ORS. Vs STATE GOVT. OF NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : January 30[th], 2018

+CRL.A. 93/2015

USMAN ALIAS KALE AND ORS.

..... Appellants

Through:Mr. Amit Srivastav, Advocatefor appellant No.1 and 5.

Ms. Amita Gupta, Mr. RughaRam,Ms.PritiYadav,Advocates for appellant No.2and 4.Mr. Ajay Verma, Mr. UpenderYogesh,Ms.Katyayini,Advocates for appellant – Iqbal.

versus

STATE

..... RespondentThrough:Ms. Aashaa Tiwari, AdditionalPublic Prosecutor for the StatewithInspectorMs.KaminiGupta,PoliceStationSouthCampus, Delhi.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S. TEJI, J.

1.The present appeal has been filed by the convicts/appellants (hereinafter referred to as “the appellants”), namely,Usman @ Kale, Shamshad @ Khutkan, Iqbal @ Billi, Shahid@ Billi and Kamruddin @ Kamru under Section 374(2) of theCr.P.C. against the judgment dated 14.10.2014 whereby theappellantshavebeenconvictedunderSection365/34,376(2)(g), 506/34 IPC, and against the order on sentence dated20.10.2014, whereby the appellants have been sentenced to lifeimprisonment along with fine of Rs.25,000/- each and in defaultof payment of fine to further undergo six months imprisonmentunder Section 376(2)(g) IPC; to undergo rigorous imprisonmentfor seven years with fine of Rs.25,000/- and in default ofpayment of fine to further undergo six months imprisonmentunder Section 365/34 IPC; and to undergo five years rigorousimprisonment under Section 506/34 IPC.

2.Factual matrix, emerging from the record, is thatthe prosecutrix and her friend, both BPO employees, on thenight intervening 23.11.2010 and 24.11.2010 were dropped bytheir office cab near M/s Sharma Automobiles, Moti Bagh, NewDelhi. The prosecutrix was abducted by the appellants at about1.10-1.15 a.m. in Mahindra Pick Up vehicle, while she and herfriend (PW2) were walking to their home. At about 1.30 a.m.,friend of the prosecutrix PW2 made complaint to the police

with regard to abduction of the prosecutrix in matador tempovehicle by armed persons and disclosed that they had taken theRing Road.The said information was recorded in PoliceStation Dhaula Kuan vide DD No.3A. Police team reached theplaceofabductionoftheprosectrixandmettheeyewitness/friend of the prosecutrix PW2.In the meantime, thewitness (PW2) informed the police that she received call fromthe prosecutrix that she was in Mangolpuri. At about 2.25 a.m.,the prosecutrix made call to the police control room that shewas dropped by some boys near T-2/190, Phase-1, MangolpuriIndustrial Area after being kidnapped and raped.The saidinformation was recorded in Police Station Mangolpuri vide DDNo.15A.

3.The police team reached Mangolpuri and recoveredthe prosecutrix from where she was brought to Police StationDhaula Kuan. Her statement was recorded in which she statedthat at about 1.10 a.m., she and her friend were dropped byoffice cab near Sharma Automobiles, Moti Bagh. When theystarted walking towards their residence, one white colour pickup vehicle came there from behind and stopped near them.Three boys were sitting in front and two boys were at the backof the vehicle. Three boys who were sitting on the front cameout of their vehicle, one of them showed pistol and abusedthem and then they grabbed the prosecutrix. They also tried tograb the friend of the prosecutrix PW2 and they both started

screaming, upon which they took the prosecutrix inside thevehicle and took the vehicle towards Dhaula Kuan on RingRoad. Her friend (PW2) ran away from the spot. She furtherstated that in the vehicle, one of the boys tore off herunderwear, removed her jeans and raped her in the movingvehicle. Meanwhile, her mobile phone rang, which was takenby one of the boys and it was switched off.She had twomobiles.On the other one, call came from employer, PW3-Niloy Pramanik. She accepted the call. PW3 could hear andmake out what was going on.The accused did not come toknow of the other mobile phone. The vehicle was driven veryfast and stopped at lonely place at Mangolpuri. All the threeboys sitting in the front portion of the vehicle took theprosecutrix to the rear open portion. There was mattress onthe floor of the rear portion where all the five boys raped herone by one.Thereafter, the proescutrix was dumped nearMangolpuri Industrial Area. The prosecutrix made call to hersuperior Niloy Pramanik (PW3) and apprised him about theincident and then called her friend (PW2).

4.On the basis of statement of the prosecutrix, FIRNo.248/2010 was registered in Police Station Dhaula Kuan.Statements of witnesses, and supplementary statement of theprosecutrix were recorded. Prosecutrix was sent to hospital formedical examination. After her medical examination, exhibitswere seized.The Investigating Officer visited the spot and

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prepared site plan.Exhibits were sent to FSL for DNAfingerprinting. On 02.12.2010, on receipt of secret information,appellants Usman and Shamshad @ Khutkan were arrested.They disclosed the commission of offence along with Iqbal @Billi, Shahid @ Billi and Kamru.They disclosed that co-accusedShahidhadsurrenderedinFaridabadCourton26.11.2010 in connection with an old case. They both led thepolice party and got recovered Mahindra Pick Up vehiclebearing registration No.HR-27J-0964 which was involved in thecrime. The said vehicle was seized by the police. Both theseaccused also identified the place from where they kidnapped theprosecutrix and the spot at Mangolpuri Industrial Area whereshe was raped.The said vehicle was got inspected andphotographed.Both accused Usman and Shamshad wereidentified by the prosecutrix during their Test IdentificationParade (TIP).

5.Production warrants for production of accusedShahid @ Billi were issued and he was arrested in the presentcase. On 04.12.2010, accused Iqbal @ Billi was arrested by thepolice of Police Station Fatehpur Beri and information of hisarrest was sent to the Investigating Officer. He was arrested inthe present case. They refused to participate in TIP. AccusedKamruddin @ Kamru @ Mobile was arrested on 06.12.2010 bythe police of Police Station Saket and Investigating Officer ofthe present case was informed about his arrest.He was also

arrested in the present case. He also refused to participate in theTIP. Accused Usman got recovered one country made revolverform his house which was seized after preparing its sketch. Healso got recovered one shirt and one pant from his house whichwas allegedly worn by him at the time of incident.The saidclothes were seized. Accused Shahid @ Billi, Iqbal @ Billi andShamshad @ Khutkan got recovered their clothes from theirhouse which they were wearing at the time of incident and thesame were seized.The prosecutrix identified all the accusedpersons and the vehicle used in the crime. The exhibits weresent to FSL for examination. The hair strand of the prosecutrixwas obtained.The country made revolver and other sampleswere sent to laboratory.The seized vehicle was found to beregistered in the name of Mohd. Sabir who sold it to Mohd.Shaukat Ali and Raees, who further sold it to one Islam.Statement of Islam was recorded who stated that the saidvehicle was being driven by his brother Usman @ Kale.

6.The Investigating Officer obtained the call detailrecords of mobile phones of accused persons and prosecutrix.PCR form and log book were seized from the Police ControlRoom.After completion of investigation, charge sheet wasfiled in the Court.

7.Charges under Section 365/34, 376(2)(g) and506/34 IPC were framed against all the appellants.Chargeunder Section 25/27/54/59 Arms Act was framed against

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appellant Usman @ Kale.Appellants pleaded not guilty andclaimed trial.8.To prove its case, the prosecution examined 57witnesses. After conclusion of prosecution evidence, statementsof the appellants under Section 313 Cr.P.C. were recorded inwhich they denied all the allegations.In their defence, theappellants examined 10 defence witnesses.

9.We have heard the arguments advanced by thelearned counsel for the appellants as well as learned AdditionalPublic Prosecutor for the State.We have meticulously gonethrough the submissions made by the parties and the evidenceand material available on record.

10.Ld. counsels for the appellants have argued that theappellants have been falsely implicated in the present case.There is gap in the story of the prosecution with regard toidentification of the accused persons, and linking them up withthe crime.It is submitted that though two accused wereidentified by the prosecutrix during their TIP and other accusedrefused, but their identity is in dispute due to the reason thatthey were already shown to the prosecutrix before conductingtheir TIP or their identification in the Court. It is submitted thatthe prosecution has failed to establish the identity of the accusedpersons beyond reasonable doubt. It is further submitted that asper the FSL report, clothes of accused Usman had blood stain

and the blood belonged to the prosecutrix, but as per thetestimony of the prosecutrix and the doctor who examined her,there was no injury on the person of the prosecutrix, whichcreates doubt about the blood found on the clothes of accusedUsman.It is further submitted that the arrest of the accusedpersonshasalsonotbeenprovedconvincingly by theprosecution which creates doubt about the manner in which theywere arrested.

11.The prosecution case is based mainly on thestatement of the prosecutrix.The prosecutrix (PW1) in herdeposition before the Court has deposed that on 24.11.2010, shewas residing at 11/78, First Floor, Village Moti Bagh, NewDelhi on rent. At that time she was employed with ConvergysIndia Pvt. Ltd., Gurgaon. Her office timings were different ondifferent days. On 23.11.2010, her office timings were form 3p.m. to 12 midnight i.e.on the intervening night of23/24.11.2010. She used to go to her office and come back byoffice cab. She left her office on that day at 12.40 a.m. In theoffice cab, besides the driver and the guard, there were sevenpersons from the same office. The prosecutrix was sitting at therear seat and her friend ‘S’ (PW2) was also in the same cab andwas sitting on the front seat on the rear portion of the cab. Atabout 1-1.15 a.m., she and her friend were dropped by the cabnear Sharma Automobiles. At that time, her friend was residingin her neighbourhood.After being dropped by the cab, they

started walking towards their house. They had just covered thedistance of about 2-3 meters when white pick up van camefrom behind onto their right side. Three persons got down fromthe front of the van and grabbed the prosecutrix.One of thethree persons showed pistol like object, whereafter she and herfriend started shouting for help but nobody came.The threepersons then pulled her inside the front portion of the van,reversed the vehicle and drove towards Dhaula Kuan.Herfriend was struggling to free herself since those persons hadtried to pull her also inside the van, but since the prosecutrixwas nearer, she was pulled inside the van and her friend wasable to free herself. In the front portion of the van, the personsitting on her right side tried to cover her mouth and her facewith his hand. The person sitting on her left side was pointing apistol at her.At that time, the prosecutrix was carrying twomobile phones, one of which was in her right side pocket andthe other in her left side jeans pocket. One of the phones rang,upon which the person sitting on her right side and left sidesearched her pockets. The person on her right side found one ofher phones and handed over the same to the person sitting onthe left who kept the same on the dash board of the van afterswitching it off. The other mobile phone which was in her leftside pocket was ringing continuously but she kept on pressingthe reject button. Thereafter she managed to take out her phoneand keep it in her jacket, thinking that if she answered the callthen her friend and police may be able to trace her call and thusshe pressed the answer button. During this period, the vehiclewas being driven and the person sitting on her left side tore herunderwear, removed her jeans and started raping her.Aftersometime, the vehicle stopped at place where several truckswere parked and three persons who were in front of the vehiclewere talking with each other. She could not understand whatthey were talking amongst themselves as she was not aware ofHindi language much. After stopping the vehicle for about 2-3minutes, the said persons drove away and the prosecutrix saw aboard that read Mangolpuri. The vehicle was driven round andround and then stopped at place which was kind of dumparea. The said persons asked her to get down from the van andtook her to the back portion of the van. There was mattresslying on the back portion on which the five persons-includingthe three who were sitting with her at the front portion, rapedher one after the other. On asking them to stop, one of themslapped her saying “chup chup”.Thereafter, the said personsagain drove the vehicle towards the main road while she wassitting at the back with two persons. At one point, the vehiclewas again stopped and she was told by one of them to get down.After she got down, they drove away the vehicle.When shelooked at the back portion of the vehicle to note down itsregistration number, she saw that there was no number plate.She saw that some decoration was made at the rear portion ofthe vehicle. When she took out her phone from the pocket ofher jacket, she realised that it was on answer mode and her boss

Niloy Pramanik (PW3) was on line and she talked to him whohad already heard as to whatever happened with her as herphone was on answer mode/call was still connected. She toldher boss that she would talk to her friend and she ended the call,after which she called her friend. She could not tell her friendexactly as to where she was at that time. Her friend suggestedthat she should call the police on number 100 after which shecalled the police and asked if they could speak in English. Thecall was initially attended by lady police official and thereafterby male police official, both of whom spoke in English. Theyadvised her to go around and point some identification of thearea while the phone was still on. She moved from that placeand saw some house with address written on it, and the samewas the industrial area Mangolpuri.She informed the policeabout the said address who told her that police van would reachthere. After sometime, the police van came to the spot and tookher to the police station which she believed to be PSMangolpuri. From there, she was taken by the police to PoliceStation Dhaula Kuan where several of her friends, office staffand Mizo welfare leaders were present.Thereafter, she wastaken to Safdarjung Hospital for her medical examination by thepolice.Thereafter, she was taken back to the Police StationDhaula Kuan where her statement Ex.PW1/A was recorded.

12.She also deposed that on 10.12.2010, she wastaken by the police to AIIMS where some of her hair were cut

and some of them were pulled and kept in an envelope. Thedoctor had prepared some document and she had signed thesame. She had identified her signature on her MLC. She wasalso taken by the police to Tihar Jail in 2010, where sheidentified two boys involved in the incident. She further statedthat vide her statements Ex.PW1/B and Ex.PW1/C respectivelyshe had identified two accused persons in the TIP proceedings.She further deposed that on the day of incident, she waswearing black jean, shirt, bra, underwear and jacket, and exceptjacket, all her clothes were taken by the doctor. She identifiedher jean as Ex.P1, T-shirt as Ex.P2, panty as Ex.P3 and bra asEx.P4 in the Court. She had identified all the accused personswho committed rape upon her on the day of incident andspecifically attributed the role played by them.She had alsoidentified the vehicle in question as Ex.P5 and pistol as Ex.P6.She also stated that vide seizure memo Ex.PW1/E, her hair wereseized in AIIMS Hospital.13.The prosecutrix (PW1) was cross-examined atlength by the defence. During her cross-examination, she statedthat she and her friend left the office at around 12.40 a.m. Theyhad returned from their office in the office cab. Her friend wasresiding in the same building where she was residing but in adifferent room.She stated that the distance between SharmaAutomobiles-where the cab had dropped them, and the buildingwhere she was residing must be around 100 meters. There was

no traffic on the road at that time. Sharma Automobiles wasjust near the place where they were dropped by the cab. Shefurther stated that there were several street lights near the placewhere they were dropped by the cab.Within 1-2 minutes oftheir being dropped, the vehicle in which she was kidnappedreached there.Accused Kamruddin caught hold of her first.She further stated that they all were around her, lifted her andput her in the pick-up. The person who had kept pistol on herforehead was having pistol in his right hand and he had put hisleft hand round her neck. Their faces were not muffled. Exceptone person who had ‘bandana’ on his forehead, the head ofother persons was not covered. She further stated that when ‘S’(PW2) tried to free her from the said accused, one of them hadpointed the pistol towards her and thereafter she started running.She further stated that it took 2-3 minutes-when the vehicle inquestion stopped near them, and she was then removed insidethe vehicle. She denied that she had not shouted ‘help-help’. Inthe front portion of the vehicle, there were four persons; onewas the driver; one was sitting on her right and one person wassitting on her left.She further stated that her underwear wastorn first by the person sitting on her left and thereafter herjeans was removed. She was sitting on the front portion of thevehicle where she was raped.She could not attempt to saveherself at that time since pistol was being pointed to her. Shewas slapped by both the persons several times. At the time ofincident, she was wearing jacket, T shirt, bra, jeans and panty.

She had taken out her mobile phone from the pocket of jeansand kept the same in her jacket before she was raped in thecabin. Till that time she did not know how many persons weresitting in the rear portion of the vehicle. After sometime of herbeing raped in the front portion of the vehicle, the vehicle wasstopped at place where several trucks were standing.Thevehicle had stopped there for about 2 to 3 minutes.She hadseen the board on which ‘Mangolpuri’ was written. The vehiclewas driven on round about, before it finally stopped near thedump area.The dump place was situated in the MangolpuriIndustrial area.She further stated that accused Shahid hadslapped her.The accused persons had not removed theirclothing before doing the act but had only pulled down theirrespective pants. She further stated that after the incident, shehad seen two of the accused persons for the first time in TiharJail during TIP proceedings. She also stated that some of theaccused persons were brutal towards her while committing therape, however she did not sustain any injury on any part of herbody and she did not see any bleeding on any part of her body.She denied that since it was media hyped case and police wasunder pressure and, as such, police forced her to identifyaccused Usman and Shamshad in TIP proceedings.

14.Testimony of prosecutrix of her being kidnappedand raped by the appellants has been duly corroborated by herfriend ‘S’ (PW2). PW2 in her deposition deposed that since the

year 2007, she along with prosecutrix was working withConvergys, Gurgaon.She left the job in the month of May2011, whereas the prosecutrix left the job after the incident. On24.11.2010, she and the prosecutrix were residing at Moti Bagin the same building in separate rooms as tenants. Their shiftwas from 2.30 p.m. to 12 midnight during those days. On thatday, they both had gone to the office via office cab.It wasintervening night of 23/24.11.2010.Around 1.05/1.10 a.m.,their cab dropped them on the highway, and their house wassituated at 10 minutes walking distance.While they werewalking towards their house, one vehicle came from behindwhich was pick-up and it stopped just ahead of them. Therewere three boys in front of the vehicle and two boys were in therear portion. All the five persons got down from the vehicle andthe prosecutrix who was standing near the vehicle, was grabbedby the boys who had got down from the front of the vehicle.They started screaming but not too loudly, since they werescared as one of those boys was armed with gun. When PW2attempted to save the prosecutrix who was grabbed by thosepersons, the boy who was holding pistol pointed out the sametowards the head of PW2, she started screaming, holding herhead to save it and started moving away from him. When shestarted screaming, the boys did not follow her and she ran awayfrom there. She further deposed that she just watched her friendbeing taken away in the front portion of the vehicle.PW2further stated that she had informed the police on 100 number.

Thereafter, the police came at the spot which was near SharmaAutomobiles.After about 45 minutes, PW2 received callfrom the prosecutrix.PW2 was informed by the prosecutrixthat she was raped by all the five accused who had taken heraway and that she had been dropped near some industrial area,but she was unable to confirm the location, so PW2 advised herto call the police on 100 number.Thereafter, she met theprosecutrix in the morning of 24.11.2010 at P.S. Dhaula Kuan.The prosecutrix was taken by the police for medical check up.PW2 accompanied the prosecutrix to the hospital. PW2 furtherstated that the vehicle in which the prosecutrix was taken awaywas Mahindra pick-up of white colour and top of the back wasopen. The number of the vehicle was HR 27J 0964 which PW2had seen when she had identified the vehicle at PS Dhaula Kuanon 09.12.2010. She identified the vehicle as Ex.P5. PW2 hadidentified all the accused persons in the Court as the one whowere present at the spot from where the prosecutrix waskidnapped.She further stated that on 25.11.2010, she alongwith the prosecutrix had accompanied the police to the spotwhere she had been raped. On 10.12.2010, she along with theprosecutrix had gone to PS Vasant Vihar where she and theprosecutrix had identified all the five accused persons.

15.During cross-examination by the learned Addl. PPfor the State, PW2 has admitted having stated in her statementEx.PW2/PA that three boys which were sitting in front came out

from the vehicle and they grabbed the prosecutrix.She alsoadmitted that the said boys tried to grab her also.She alsostated that accused Shahid @ Billi, Kamruddin @ Kamru @Mobile and Shamshad @ Khutkan were sitting in the frontportion of their vehicle, and those three boys came out of thevehicle and accused Kamruddin had shown pistol like thing,abused them and that accused Iqbal @ Billi and Usman @ Kalewere sitting in the back portion of the vehicle.She alsoadmitted having stated that on 10.12.2010, the doctor hadremoved and preserved the hair of the prosecutrix and the samewere seized vide memo Ex.PW1/E.

16.PW2 was cross-examined at length by the defence.During cross-examination by the defence counsel, PW2 statedthat she had been using spectacles since December, 2010. Shedenied that at the time of incident she was unable to witness theincident as she was not using spectacles. She had informed thepolice on 100 number about the incident at about 1.15 a.m.After about 20 minutes, the police reached the spot of incident.She stated that she might have informed the police that theoffending vehicle was Metador tempo as she was in shock. Theprosecutrix had called her after 2 a.m.PW2 had advised theprosecutrix to call police on 100 number.When prosecutrixwas being lifted from the spot, they had raised alarm but no onewas around to reach there. There were three persons who camefrom the vehicle to grab them. She was standing in front of the

boy who was holding pistol at distance of about 1 foot. Therewas light at the spot.She had given the description of thevehicle and it was of white colour. They had hardly walked for10 steps when the offence vehicle reached there. At that timethey were near Sharma Automobiles.

17.Testimony of prosecutrix (PW1) has further beencorroborated by PW3-Sh.Niloy Pramanik.PW3 deposed thaton the intervening night of 23/24.11.2010, he was working asteam leader with BPO Convergys India Services Pvt. Ltd.,Gurgaon. The prosecutrix was working in his team as SeniorCustomer Care Officer since last about two years. On that day,the prosecutrix was working from 3 p.m. to 12 midnight shift.He received call from his Operation Manager at about 1 a.m.that the prosecutrix was lifted by some guys from the placewhere she was dropped by the cab. Thereafter, he had tried tocontact the prosecutrix from his mobile phone.The mobilephone of the prosecutrix was ringing when he had called her butshe was not picking it.He continued calling her from hismobile phone. Finally, his call got connected with the mobilephone of the prosecutrix, but nobody gave response althoughthe line was on. He could hear some male noises and femalenoise. He could also hear the sound of air in moving vehicle.He was continuously saying ‘Hello-Hello’. He also heard thecries of female voice and she was saying please let her go.That voice of female was of the prosecutrix. He had heard the

male voices also saying ‘Tu Ro kyon rahi hai, humara kaamnipat jayega to tujhe chhod denge’. That continued for about20-25 minutes.After sometime, the line was disconnected.Then he received call from the prosecutrix who told him thatshe had been raped by five persons. PW3 asked her as to whereshe was and she told him that she was somewhere inMangolpuri. She also told that she was dropped at Mangolpuriby the vehicle. She told him that she would call him later as shehad some PCR Van there. Thereafter, he immediately left forDhaula Kuan police station. When he reached PS Dhaula Kuan,the prosecutrix was already present there along with ‘S’ (PW2).The prosecutrix was taken to hospital for medical examination.

18.During cross-examination, PW3 has stated thatwhen he made call to the prosecutrix, he was at home. Heonly moved from his home when the prosecutrix had called himstating that she had been dropped at Mangolpuri.Theprosecutrix did not call him after being raped and before shewas dropped at Mangolpuri.He reached PS Dhaula Kuan atabout 2.30 or 3/3.15 a.m.He started making calls to theprosecutrix at about 1.15 a.m.He made continuous calls 3-4times but she had not picked her phone. Then he had made acall to his Manager who directed him to make calls to theprosecutrix. After gap of 5-10 minutes, he again started callingthe prosecutrix. When the first time his call was connected withthe prosecutrix, she could not talk but remained connected for

about 20-25 minutes and thereafter the line was disconnected.The second time when the call was materialized, he hadconversation with the prosecutrix who disclosed that she hadbeen raped by five persons and she was crying. On asking, shetold that she was in the area of Mangolpuri.

19.The Supreme Court in the case of State of Punjabv. Gurmit Singh and others AIR 1996 SC 1393,while relyingupon the testimony of the prosecutrix has observed that thetestimony of prosecutrix alone is sufficient to base theconviction of an accused, which needs no corroboration. It washeld that :

“9. The grounds on which the trial courtdisbelieved the version of the prosecutrixarenotatallsound.Thefindingsrecorded by the trial court rebel againstrealismandlosetheirsanctityandcredibility. The court lost sight of the factthat the prosecutrix is village girl. Shewas student of Xth Class. It was whollyirrelevant and immaterial whether shewas ignorant of the difference between aFiat, an Ambassador or Master car.Again, the statement of the prosecutrix atthe trial that she did not remember thecolour of the car, though she had giventhe colour of the car in the FIR was of nomaterial effect on the reliability of hertestimony. No fault could also be foundwith the prosecution version on the

ground that the prosecutrix had not raisedan alarm while being abducted. Theprosecutrix in her statement categoricallyasserted that as soon as she was pushedinside the car she was threatened by theaccused to keep quiet and not to raise anyalarm otherwise she would be killed.Under these circumstances to discreditthe prosecutrix for not raising an alarmwhile the car was passing through theBus Adda is travesty of justice. The courtover-looked the situation in which poorhelpless minor girl had found herself inthe company of three desperate youngmenwhowerethreateningherandpreventingherfromraisinganyalarm…Her statement about the mannerin which she was abducted and again leftnear the school in the early hours of nextmorning has ring of truth. It appearsthatthetrialcourtsearchedforcontradictionsandvariationsinthestatementoftheprosecutrixmicroscopically, so as to disbelieve herversion…..Inthenormalcourseofhuman conduct, this unmarried minorgirl, would not like to give publicity tothetraumaticexperienceshehadundergoneandwouldfeelterriblyembarrassed in relation to the incident tonarrate it to her teachers and othersoverpowered by feeling of shame andher natural inclination would be to avoidtalking about it to any one, lest the familynameandhonourisbroughtintocontroversy. Therefore her informing toher mother only on return to the parentalhouse and no one else at the examinationcenter prior thereto is an accord with thenatural human conduct of female. Thecourts must, while evaluating evidence,remain alive to the fact that in case ofrape, no self respecting woman wouldcome forward in court just to make ahumiliating statement against her honoursuch as is involved in the commission ofrape on her. In cases involving sexualmolestation,supposedconsiderationswhich have no material effect on theveracity of the prosecution case or evendiscrepancies in the statement of theprosecutrixshouldnot,unlessthediscrepancies are such which are of fatalnature, be allowed to throw out anotherwise reliable prosecution case. Theinherent bashfulness of the females andthe tendency to conceal outrage of sexualaggression are factors which the Courtsshould not over-look. The testimony ofthe victim in such cases is vital andunless there are compelling reasonswhichnecessitatelookingforcorroboration of her statement, thecourts should find no difficulty to acton the testimony of victim of sexualassault alone to convict an accused

wherehertestimonyinspiresconfidence and is found to be reliable.Seekingcorroborationofherstatementbeforerelyinguponthesame, as rule, in such cases amountsto adding insult to injury. Why shouldthe evidence of girl or woman whocomplainsofrapeorsexualmolestation, be viewed with doubt,disbelief or suspicion? The Court whileappreciatingtheevidenceofaprosecutrixmaylookforsomeassurance of her statement to satisfyits judicial conscience, since she is awitnesswhoisinterestedintheoutcome of the charge leveled by her,but there is no requirement of law toinsistuponcorroborationofherstatement to base conviction of anaccused. The evidence of victim ofsexual assault stands almost at parwith the evidence of an injured witnessand to an extent is even more reliable.Just as witness who has sustainedsome injury in the occurrence which isnotfoundtobeselfinflicted,isconsidered to be good witness in thesense that he is least likely to shield thereal culprit, the evidence of victim ofa sexual offence is entitled to greatweight,absenceofcorroborationnotwithstanding.Corroborativeevidenceisnotanimperative

componentofjudicialcredenceinevery case of rape. Corroboration as acondition for judicial reliance on thetestimony of the prosecutrix is not arequirement of law but guidance ofprudence under given circumstances.It must not be over-looked that awoman or girl subjected to sexualassault is not an accomplice to thecrimebutisavictimofanotherperson's lust and it is improper andundesirable to test her evidence with acertain amount of suspicion, treatingher as if she were an accomplice.Inferences have to be drawn from agiven set of facts and circumstanceswith realistic diversity and not deaduniformity lest that type of rigidity inthe shape of rule of law is introducedthrough new form of testimonialtyranny making justice casualty.Courts cannot cling to fossil formulaand insist upon corroboration even if,taken as whole,the case spoken of bythe victim of sex crime strikes thejudicial mind as probable. In State ofMaharashtrav.ChandraprakashKewalchand Jain MANU/SC/0122/1990: 1990 CriLJ 889 Ahmadi, J. (as the LordChief Justice then was) speaking for theBench summarised the position in thefollowing words :“A prosecutrix of sex offencecannot be put on par with anaccomplice. She is in fact victimof the crime. The Evidence Actnowhere says that her evidencecannot be accepted unless it iscorroboratedinmaterialparticulars. She is undoubtedly acompetent witness Under Section118 and her evidence must receivethe same weight as is attached toan injured in cases of physicalviolence. The same degree of careand caution must attach in theevaluation of her evidence as inthe case of an injured complainantor witness and no more. What isnecessary is that the court must bealive to and conscious of the factthat it is dealing with the evidenceof person who is interested in theoutcome of the charge leveled byher. If the court keeps this inmind and feels satisfied that itcan act on the evidence of theprosecutrix, there is no rule oflaw or practice incorporated intheEvidenceActsimilartoillustration (b) to Section 114which requires it to look forcorroboration. If for some reasonthecourtishesitanttoplaceimplicit reliance on the testimony

of the prosecutrix it may look forevidencewhichmaylendassurance to her testimony short ofcorroboration required in the caseof an accomplice. The nature ofevidencerequiredtolendassurance to the testimony of theprosecutrixmustnecessarilydependonthefactsandcircumstances of each case. But ifa prosecutrix is an adult and offull understanding the court isentitled to base conviction onher evidence unless the same isshown to be infirm and nottrustworthy. If the totality andthe circumstances appearing onthe record of the case disclosethat the prosecutrix does nothave strong motive to falselyinvolve the person charged, thecourt should ordinarily have nohesitationinacceptingherevidence.” (emphasis supplied)

20.Further, in the case of Vijay @ Chinee v. State ofMadhya Pradesh (2010) 8 SCC 191, the Supreme Court hasdealt with the issue and held :

“14. Thus, the law that emerges on theissue is to the effect that the statement ofthe prosecutrix if found to be worthy ofcredenceandreliable,requiresno

corroboration. The Court may convict theaccused on the sole testimony of theprosecutrix.”

21.In the case of Krishan Kumar Malik Vs. State ofHaryana: (2011) 7 SCC 130, the Supreme Court has held :

"31. No doubt, it is true that to hold anaccused guilty for commission of anoffence of rape, the solitary evidence ofprosecutrix is sufficient provided thesame inspires confidence and appears tobe absolutely trustworthy, unblemishedand should be of sterling quality.”

22.In the case of State of Rajasthan Vs. Babu Meena:(2013) 2 SCALE 479, it has been held :

“8. Wedonot havetheslightesthesitationinacceptingthebroadsubmissionofMr.Jainthattheconviction can be based on the soletestimony of the prosecutrix, if foundto be worthy of credence and reliableandforthatnocorroborationisrequired. It has often been said that oraltestimony can be classified into threecategories, namely (i) wholly reliable, (ii)wholly unreliable and (iii) neither whollyreliable nor wholly unreliable. In case ofwholly reliable testimony of singlewitness, the conviction can be foundedwithoutcorroboration.Thisprincipleapplies with greater vigour in case the

nature of offence is such that it iscommittedinseclusion.”(emphasissupplied)

23.From the testimony of the prosecutrix (PW1), theincident of commission of rape upon her has duly beenestablished. Even the appellants/accused do not raise any doubtabout the fact that the prosecutrix was, indeed, raped on thefateful night. The prosecutrix has categorically stated that onthe fateful night, after being dropped by the office cab, whenshe was going towards her house along with her friend (PW2), avan came there and kidnapped her on the point of pistol. Shehas also stated that her friend was also tried to be pulled insidethe said van, but she somehow managed to flee from theclutches of the appellants and ran away from the spot of herkidnapping.The prosecutrix has narrated the entire incident.She has stated that after being pulled inside the vehicle, threeappellants started misbehaving with her and then one appellanttoreherunderwear/panty;removedherjeansandthencommitted rape upon her. Thereafter, she was taken in the saidvehicle to the area of Mangolpuri where she was taken to therear portion of the vehicle where all the appellants committedrape upon her.She also stated that she was dumped inMangolpuri Industrial Area from where she made call to herfriend (PW2) and also spoke to her boss/superior (PW3). Shealso stated that on the advice of her friend (PW2), she made acall to the police control room at number 100 upon which the

police team reached the spot and then she was taken to thePolice Station Dhaula Kuan.In the Police Station DhaulaKuan, her statement was recorded and thereafter she was sent tothe hospital for medical examination.She has correctlyidentified all the appellants in the Court by stating that out ofthose persons, three persons kidnapped her, one appellantcommitted rape upon her at the front portion of the vehicle, andthen she was raped by all the appellants in the rear portion ofthe vehicle. She has also testified with regard to handing overof her clothes to the police, her medical examination and takingof her hair sample by the doctor.

24.Testimony of the prosecutrix (PW1) has duly beencorroborated by her friend (PW2) who was an eye witness to theincident of kidnapping of the prosecutrix by the appellants.PW2 has specifically stated that on that fateful night, she alongwith prosecutrix were dropped near Sharma Automobiles bytheir office cab and they were in the process of walking towardstheir house. In the meanwhile, one white colour pick up vehiclecame from behind and stopped in front of them.Threeappellants got down from the vehicle. Out of those, one showedpistol like object to them and took the prosecutrix inside thevehicle. They also tried to take her (PW2) inside the vehicle,but she somehow managed to free herself and ran away fromthere.She saw all the five appellants taking away theprosecutrix in the said vehicle and then the police was informedabout the kidnapping of the prosecutrix. PW2 also corroboratedthat after about 45 minutes she received phone call from theprosecutrix to the effect that she was left by five boys atMangolpuri Industrial Area after being kidnapped and raped.She advised the prosecutrix to inform the police at number 100first, and on her advice the prosecutrix informed the policeabout the incident. She further corroborated that thereafter theprosecutrix was brought to Police Station Dhaula Kuan whereher statement was recorded and then she was taken to thehospital for medical examination.

25.PW3NiloyPramanikalsocorroboratedthetestimonyofprosecutrix(PW2).PW3statedthattheprosecutrix was working with him as Senior Customer CareOfficer for the last about two years.On the fateful night, hereceived telephonic call from his office that the prosecutrixhad been kidnapped upon which he tried to contact theprosecutrix by making calls on her mobile phone. Initially, thephone of the prosecutrix kept on ringing but she did not pick upthe phone, but after sometime the call made by him wasconnected, but there was no response from the other side. Hecategorically stated that while the call was still on, he heard thevoices of the prosecutrix and male voices. He stated that theprosecutrix was crying and asking for letting her go. He alsoheard the male voices saying why the prosecutrix was weepingand that she would be left once they are done.The said call

lasted for about 20-25 minutes and after sometime, the said callwas disconnected.Thereafter, he received call from theprosecutrix who informed PW3 that she was raped by fivepersons. She also informed that she was left at Mangolpuri.

26.So far as the contention of the appellants that theywere shown to the prosecutrix before conducting their TIP,therefore, no negative inference can be drawn against them andfor refusing to participate in the TIP is concerned, the same iscompletely unfounded.It is matter of record that appellants,namely,UsmanandShamshadwereidentifiedbytheprosecutrix during their TIP proceedings as the culprits whocommitted rape upon her on the day of incident. So far as theother appellants are concerned, apart from their ipse dixit thatthey had been shown to the prosecutrix, there is no basisdisclosed by the accused to lay such claim. No justificationhas been probabalised by the said accused to refuse TIP. Theprosecutrix during her examination before the trial court hasduly identified all the accused persons and narrated the role ofeach and every accused who had kidnapped her and committedgang rape upon her. There is nothing in the testimony of theprosecutrix which runs contrary to her accusations against theappellants. Even, PW2-friend of the prosecutrix also identifiedthe accused persons as the culprits who on the fateful night, hadkidnapped the prosecutrix and took away her along with themwho was later on raped by the accused persons.Thus, the

identity of the appellants has been duly established on recordfrom the TIP proceedings of accused Usman and Shamshad;testimony of prosecutrix (PW1), and; her friend (PW2).

27.While dealing the relevancy of test identificationparade of an accused, and refusal of the accused to participate inthe same, the Supreme Court in the case of Munna vs. State(NCT of Delhi) (2003) 10 SCC 599 held that in case where aaccused himself refuses to participate in test identificationparade, it is not open to him to contend that the statement of theeye-witnesses made for the first time in Court-wherein theyspecifically point towards him as person who had taken part inthe commission of crime, should not be relied upon. This pleais available, provided the prosecution is itself responsible fornot holding test identification parade.However, in casewhere the accused himself declines to participate in testidentification parade, the prosecution has no option but toproceed in normal manner like all other cases and rely uponthe testimony of the witnesses, which is recorded in Courtduring the course of the trial of the case.28.In the case of Nazim Khan @ Guddu v. State 2014SCC OnLine Del 2938, it was held thus:

“17. It, therefore, is clear that the testidentification parade report although isnot substantive evidence but can beusedonlyforthepurposeof

corroboration. There can be two resultsof test identification parade. Firstly, therefusaltoparticipateinthetestidentification parade by the appellantis without any justification. Such arefusal is piece of evidence and thecourts can take an adverse inferenceagainst the accused that if he wouldhaveparticipatedinthetestidentification parade, he would havebeen identified by the witness and therefusal can be used to corroborate thedockidentificationbywitness.Secondly, the accused has justifiablereason to refuse to participate in the testidentification parade. Where accused hasjustifiable reason, no adverse inferencecan be taken against him.” (emphasissupplied)

In the case of Ashok Debbarma v. State of Tripura(2014) 4 SCC 747, it was observed that :

“21.Theabovementioneddecisionswould indicate that while the evidence ofidentification of an accused at trial isadmissibleassubstantivepieceofevidence, it would depend on the facts ofa given case as to whether or not such apiece of evidence can be relied upon asthesolebasisofconvictionofanaccused.In Malkhansingh v. State ofM.P., this Court clarified that the testidentification parade is not substantive

piece of evidence and to hold the testidentification parade is not even the ruleof law but rule of prudence so that theidentificationofaccusedinsidethecourtroom at the trial can be safely reliedupon.We are of the view that if thewitnesses are trustworthy and reliable,the mere fact that no test identificationparade was conducted, itself, would notbe reason for discarding the evidence ofthose witnesses.....”

29.Therefore, in view of present set of circumstancesand the law laid down as discussed above, an adverse inferenceis warranted against the appellants, namely, Shahid @ Billi,Iqbal @ Billiand Kamruddin @ Kamru @ Mobile as theyrefusedtoparticipateintheTIPproceedings,whereasappellants-Usman and Shamshad were duly identified by theprosecutrix during their TIP proceedings.

30.Argument advanced by the learned counsel for theappellant was that as per the prosecution, the samples from thevehicle were collected after about 10 days of the allegedincident of rape which creates doubt about the prosecution storyand the possibility of plantation of same cannot be ruled out.

31.So far this contention of the appellant is concerned,it is evident that the vehicle bearing registration no.HR 27J0964 in which the rape was allegedly committed upon theprosecutrix, was seized vide seizure memo dated 02.12.2010,

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Ex.PW48/H.It is further apparent from the record that theaccused Shamshad @ Khuktan was arrested on 02.12.2010 videarrest memo Ex.PW48/D and thereafter his disclosure statementEx.PW48/F was recorded on the same day.As per thetestimony of FSL expert Sh.A.K. Srivasatava (PW7), the saidvehicle was examined by the team of FSL experts on02.12.2010 itself, and samples were drawn from the same andseized.Therefore, there is no force in the contention of theappellant that there is delay of 10 days in collecting samplesfrom the vehicle for the reasons that the vehicle in question wasseized only on 02.12.2010, and that too after the arrest ofaccused Shamshad @ Khutkan and upon his disclosure, thesame was seized and then examined by the FSL experts whichled to the seizure of samples from the said vehicle.

32.Next contention raised by the learned counsel forthe appellants was that though several samples were sent to theFSL, but number of exhibits were returned unexamined by theFSL without giving any explanation. Thus, there is flaw in theinvestigation and its benefit is bound to be given to theappellants.

33.From the testimony of PW7-Sh.A.K. Srivastava,Assistant Director (Biology), DNA Finger Printing Unit, FSL,Rohini, Delhi, it is apparent that he had stated that “Exhibits 1A,1B, 1C, 1D, 1E, 1F, 1H, 1I, 1L, 5, 6, 7, 8,9, 10, 11, 12,14, 16,18, 19, 20, 22, 23, 24, 26 and 27 were returned unexamined as

exhibits 1G-1, 1G-2, 1G-3, 1J-1, 1J-2, 1K-1, 1K-2, 2B, 3B, 13A,13B, 17, 21, 25 and 34B were sufficient to conclude the resultsof the case.” The explanation given by the witness (PW7) forreturning some exhibits unexamined was that the other exhibitswere sufficient to prove the case and there was no necessity toexaminealltheexhibits.Similarly,duringhiscross-examination, PW7 stated that out of 56 samples, 27 forensicsamples were examined by him. On specific question as towhy did he return the 1A, 1B, 1C, 1D, 1E, 1F, 1H, 1I and 1L,PW7 stated that he did not examine the same because thosewere not required for examination.So, PW7 has properlyexplained the reasons for returning some samples withoutexamination, and the appellants cannot get any benefit of thesame.

34.The next contention of the learned counsel for theappellants relates to their arrest, and the recoveries madethereafter. It was contended on behalf of the appellants that theappellants were picked up from different places and then falselybooked in the present case by showing their arrest from theirnative places. It was further contended that the recoveries, asalleged, are planted ones by the police, just to make out caseagainst them, as the police as well as prosecution was underpressure to solve the case.

35.As per the testimony of SI Sushil Sawaria (PW48),accused Usman and Shamshad were arrested on 02.12.2010.

PW48 had deposed that on that day he along with SI SandeepSharma (PW52) and Insp. Raj Kumari (PW56) with police staff,on the basis of secret information, took their position at thespot.He further deposed that at about 2.00 a.m., they saw amotorcycle coming towards them from the side of villageDhauj.They overpowered those persons who disclosed theirnames as accused Usman @ Kale and Shamshad @ Khutkan.They were arrested vide arrested memos Ex.PW48/A andEx.PW48/D.Their personal searches were conducted vidememosEx.PW48/BandEx.PW48/Erespectively.TheirdisclosurestatementsEx.PW48/CandEx.PW48/Fwererecorded.The said motorcycle was seized vide memoEx.PW48/G.36.So far as accused Shahid @ Billi is concerned, it isapparent from the record that he was lodged in Neemka Jail,Ballabhgarh, Haryana and the said fact was disclosed byaccused Usman and Shamshad.Production warrants for theproduction of accused Shahid was got issued and he wasproduced before the concerned Magistrate on 04.12.2010 whenhewasarrestedintheinstantcasevidearrestmemoEx.PW36/A.

37.PW39 HC Shivlal had deposed that on 04.12.2010,he received information that accused Iqbal @ Billi would cometo meet somebody on Sohna Gurgaon Road.Thereafter, healong with SI Upender (PW49) and HC Ranjeet reached T-

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point, Sector-56, Sohna, Gurgaon where secret informer metthem. After sometime, the secret informer identified personcoming from Sohna Road to be accused Iqbal @ Billi. AccusedIqbal was apprehended and was arrested vide arrest memoEx.PW39/A.

38.Deposition regarding arrest of accused Kamruddinhad been made by PW38 HC Umesh Kumar and PW40 HCAsgar Ali. They have deposed that on 06.12.2010, they alongwith SI Virender Prakash and other police staff reached nearvillage Lakwas on Sohna Ballabhgarh Road where secretinformer met them and informed that accused Kamruddin waspresent in the village. At about 7.00 p.m., the secret informerpointed towards boy coming from the side of village as that ofaccused Kamruddin. When police party went to apprehend theaccused, he ran towards the fields.He was chased and thenapprehended. He was arrested vide arrest memo Ex.PW38/A.

39.It has come in the evidence that after his arrest,accused Usman @ Kale led the police party to Village Mirpur,District Palwal, Haryana and got recovered one black colourshirt and light blue coloured pant from nail on the wall of aroom stated to be worn by him at the time of incident. ThosearticleswereseizedvideseizurememoEx.PW48/V.Thereafter, accused Usman got recovered desi katta from theTaand (slab) of the room while disclosing that accusedKamruddin had used it to terrorize the prosecutrix and PW-2 on

the day of incident.The said katta was seized vide seizurememo Ex.PW48/X. Similarly, accused Shahid @ Billi led thepolice party to his house and got recovered yellow colourstriped shirt and blue coloured lower having white stripes froman iron almirah disclosing that he was wearing the same at thetime of incident.The said clothes were seized vide seizurememo Ex.PW48/Y.Similarly, accused Iqbal @ Billi led thepolice party to his house and got recovered light pink colouredshirt and light blue and white striped pant from suitcasedisclosing that he was wearing the said clothes at the time ofincident.The said clothes were seized vide seizure memoEx.PW48/Z.Accused Shamshad led the police team to hishouse in the same village and got recovered cream and whitecoloured stripe shirt and blue and black coloured stripe pantand round neck sweater from the steel box disclosing that hewas wearing the same clothes at the time of incident. The saidclothes were seized vide seizure memo Ex.PW48/Z1.In thecross-examination of these prosecution witnesses, there is nocontradiction of gap noticed. Pertinently, no alibi was set up bythe accused, or established on the record by the accused.

40.The offending vehicle within which the rape wasallegedly committed upon the proescutrix was recovered at theinstance of accused Shamshad @ Khutkan from Vakkal ke gher,village Tai, Tehsil Nuh, District Mewat, Haryana and it wasseized vide seizure memo Ex.PW48/H.PW1-prosecutrix had

duly identified the said vehicle during her testimony before theCourt as Ex.P5. Similarly, PW2-friend of the prosecutrix whois also an eye witness to the incident of kidnapping of theprosecutrix had also identified the said vehicle as Ex.P5 duringher testimony before the trial court.

41.In the instant case, the recoveries were made at theinstance of the accused persons while they were in custody, andthe same have been duly established with certainty. The policeofficials who were part of the investigation when suchrecoveries were affected, have remained absolutely unperturbedand, in fact, nothing has been elicited from them to disprovetheir truthfulness.

42.On studied scrutiny of the arrest memos,disclosure statements recorded under Section 27 of the IndianEvidence Act, 1872 and the disclosure made in pursuancethereof, we find that the recoveries of articles viz. the desi kattaand the vehicle from the custody of the accused persons cannotbe discarded. The articles that have been seized, and the placesfrom where they have been seized were within the specialknowledge of the accused persons. It is argued before us thatthe said recoveries have really not been made from the accusedpersons but have been planted by the investigating agency. On acareful analysis of the evidence of the police officials who werepart of the investigating team, we do not notice anythingdoubtful or suspicious in this regard. The contentions advanced

by the counsel for the appellants in this regard, do not impressus in the least. The Supreme Court in the case of DhananjoyChatterjee alias Dhana Versus State of West Bengal(1994) 2SCC 220 while dealing with the applicability of Section 27 ofthe Evidence Act, observed as under :

“....Though, the entire statement made bytheappellantbeforethepoliceisinadmissible in evidence being hit bySections 25 and 26 of the Evidence Actbut that part of his statement which led tothe discovery of the shirt and the pant isclearly admissible under Section 27 ofthe Evidence Act. We disregard theinadmissible part of the statement andtakenoteonly ofthatpartofhisstatement which distinctly relates to thediscovery of the articles pursuant to thedisclosurestatementmadebytheappellant as it is only so much of thestatement made by person accused ofan offence while in custody of policeofficer, whether it is confessional or not,as relates distinctly to the fact discoveredwhich is capable of being proved andadmitted into evidence. The discovery ofthe fact in this connection includes thediscovery of an object found, the placefrom which it is producedand theknowledge of the accused as to itsexistence.

Similar views have been further expressed inNisar Khan@ Guddu and Ors. v. State of Uttaranchal (2006) 9 SCC 386.

43.PW-8 Dr.Sudipta Ranjan Singh had deposed thaton 08.12.2010, he had examined accused Kamru @ Mobile,Iqbal @ Billi and Shahid @ Billi and opined that there wasnothing to suggest that they were incapable of performingsexual intercourse under ordinary circumstances.He alsodeposed that he had preserved the blood in gauze, blood in FTAcard and penile swab of the above accused persons and handedthem over to the IO.Similarly, PW9 Dr.Ashish Jain haddeposed that on 02.12.2010, he had examined accused Usman@ Kale and after his examination, preserved underwear bloodin EDTA Vial, FTA card, pubic hair, penile swab, control swab.PW10 Dr.Hari Prasad had deposed that on 02.12.2010, he hadexaminedaccusedShamshad@Khutkanandafterhisexamination, preserved underwear, pubic hair, penile swab,control swab, blood in EDTA vial and FTA card.

44.DNA/FSL report of the vehicle in question and theexhibits collected from the vehicle also corroborated thetestimony of the prosecutrix (PW1). PW7-Sh.A.K. Srivastava,Assistant Director (Biology), DNA Fingerprinting Unit, FSL,Rohini, Delhi had stated that on 02.12.2010, one Mahindra Maxpick-up vehicle no.HR 27J 0964 was produced in FSL, Rohinias the same was involved in crime committed on theintervening night of 23/24.11.2010. team including him was

organized for inspection.The said vehicle was examined on02.12.2010 and 03.12.2010. cutting having some suspectedstains and 11 strands of hair recovered from the front seat of thevehicle were handed over to the IO. He had proved the originalcrime report vide Ex.PW7/A.PW7 also deposed that on26.11.2010, three sealed parcels were received; on 03.12.2010,ten sealed parcels were received; on 09.12.2010, 14 sealedparcels were received and on 13.12.2010, five sealed parcelswere received in the office having exhibits.All the exhibitswere biologically examined in the laboratory. On examination,blood was detected on exhibits 1K-1, 1K-2, 13 A, 13 B, 17, 21,25 and 34 B. Human semen was detected on exhibits 1G-1, 1G-2, 1G-3, 1J-1, 1J-2, 2B, 3B, 33B and 34 B.The DNA wasisolated from exhibits 1G-1, 1G-2, 1G-3, 1J-1, 1J-2, 1K-1, 1K-2, 2B, 3B, 13 A, 13 B, 17, 21, 25 and 34 B. After examinationof the exhibits, the witness (PW7) gave the opinion that DNAprofile of source exhibit i.e. FTA card/blood samples of all theappellants were responsible for the biological stains i.e. semenon the DNA profile of exhibit 1G-1, 1G-2 (micro slides), 1G-3(cotton wool swab), 1J-1 (micro slide), 1J-2 (cotton wool swab),2B (jeans pant of the victim) and 3 (underwear of victim). Itwas also opined that the DNA profile of exhibits 1K-1, 1K-2(blood of the victim) was matched with the DNA of blood onexhibit 34 (pant of accused Usman @ Kale). PW7 proved hisdetailed report of analysis as Ex.PW7/C dated 18.01.2011.

45.As per the opinion and report Ex.PW7/C of theDNA expert, the incident of commission of rape upon theprosecutrix by the appellants has also been duly proved. As perthe DNA report, the FTA cards/blood samples of the appellantsmatched with the semen on the DNA profile of jeans pant andunderwear of prosecutrix.It clearly proves the case of theprosecution that on the day of incident, appellants forciblykidnapped the prosecutrix and rape was committed upon her bythe appellants.

46.Next argument advanced by the counsel for theappellant Usman is that there was tampering in the samples sentto the FSL inasmuch, as, 10 samples of the prosecutrix weredrawn by the doctor, but in the seizure memo Ex.PW16/A, thearticles shown to be seized were 12 and the same number ofarticles were examined in the FSL vide report Ex.PW7/A toEx.PW7/C.

47.There is no basis for this submission made by thelearned counsel for the appellant Usman, for the reasons that asper the MLC Ex.PW12/A, after medical examination of theprosecutrix, 11 articles were sealed and handed over to theconstable present, which were later on handed over to theInvestigating Officer (PW56) who seized the same vide seizurememo Ex.PW16/A.Perusal of seizure memo Ex.PW16/Afurther shows that total 12 articles belonging to the prosecutrix,including the 12[th]article being blood sample of the prosecutrix,

were seized by the IO and the same were sent to FSL throughHC Dheer Singh (PW31).As per FSL report Ex.PW7/A toEx.PW7/C also, 12 articles belonging to the prosecutrix wereexamined in the laboratory. Though, there is slight change inthe number of articles seized by the doctor, and their seizure bythe IO, but it does not in any way affect the case of theprosecution.

48.Argumentadvancedbythecounselfortheappellant Usman is that no blood of the prsoecutrix was takenfrom the vehicle.This submission is of no relevance, and itdoes not weaken the case of the prosecution. There is nothingto sugest that the prosecutrix suffered such heavy bleeding thatthe blood would have fallen in, and left stain in the vehicle.The aspect of sending of blood sample of the prosecutrix to theFSL has already been dealt with by us above.Next limb ofargument advanced is that there was no blood on the pant ofaccused Usman, and that there were dirty stains on it, whichcannot lead to the inference that the blood on the pant matchedwith the blood of the prosecutrix.

49.So far as the above contention on behalf of theaccused Usman is concerned, this part of DNA report is anadditional circumstance, apart from the other evidence availableon record against him. Even if the said argument is accepted, itis of no consequence and cannot affect the case of prosecutionin view of the fact that the prosecutrix has duly identified

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accused Usman too, apart from other accused persons, as theculprit who had kidnapped her and committed gang rape uponher on the fateful night. Argument that the pant of the accusedwas not having blood, is just on the basis of inference drawnthat the pant was having dirty stains and not blood. Pertinently,the question of the pant of Usman having blood was not put tothe FSL expert.

50.Medicalexaminationoftheprosecutrixwasconducted by PW12-Dr.Kavita Soni. PW12 had deposed thaton 24.11.2010, she was working as Senior Resident inSafdarjung Hospital. On that day, the prosecutrix was broughtto the hospital along with her sister and police officials. Therewas alleged history of sexual assault at about 2.00 a.m. on24.11.2010, near Dhaula Kuan.PW12 had examined thepatient. The patient was unmarried female with no history ofprevious sexual contact. On her examination, PW12 found thatthe hymen of the prosecutrix was freshly ruptured and there wasslight bruising over posterior vaginal wall. PW12 had provedthe MLC of the prosecutrix as Ex.PW12/A and OPD card asEx.PW12/B.

51.Testimony of doctor (PW12) who had medicallyexamined the prosecutrix, MLC Ex.PW12/A and OPD cardEx.PW12/Boftheprosecutrixfurthercorroboratesthetestimony of the prosecutrix that she was sexually assaulted onthe day of incident.In the report of the doctor, it is clearly

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mentioned that the prosecutrix was brought to the hospital withthe history of sexual assault and as per report, her hymen wasfreshly ruptured having bruise over her posterior vaginal wall.

52.In our considered view, the testimony of theprosecutrix is natural, reliable, credible and trustworthy, freefrom any kind of glitches. She in simple language narrated theincident at the time of her deposition before the trial court andher testimony has duly been corroborated by PW2 and PW3.The testimony of the prosecutrix itself is sufficient to base theconviction of the appellants, but in the instant case, hertestimony has duly been corroborated by PW2 and PW3. Thetrial Court found her evidence credible and trustworthy and wefind no reason to take different view.From the abovementioned testimony of the prosecutrix (PW1), her friend(PW2) and PW3, it has been established beyond reasonabledoubt that all the appellants kidnapped the prosecutrix on thefateful night of 23/24.11.2010, and then committed rape uponher in the vehicle. All these witnesses were cross-examined atlength by the defence, but the defence has failed to put any dentto their testimony. All the appellants were duly identified bythe prosecutrix (PW1) and her friend (PW2) as the persons whohad, firstly, kidnapped the prosecutrix in the vehicle in questionand then committed rape upon her in the said vehicle itself.

53.Fromthetestimonyoftheprosecutrix,theprosecution has successfully established that on the fateful night

of 23/24.11.2010, all the appellants firstly kidnapped theprosecutrix from near Sharma Automobiles, Moti Bagh, NewDelhi, took her in pick-up van, rape was committed in themoving vehicle and then all the appellants committed rape uponthe prosecutrix in the area of Mangolpuri. The prosecution hasbeen able to establish all the charges against the appellants. Theappellants have failed to make out any ground in support of thepresent appeal and the same deserves dismissal.

54.As discussed above, the judgment and convictionof the appellants is hereby upheld. Consequently, the presentappeal is dismissed.

P.S. TEJI, J

VIPIN SANGHI, J

JANUARY 30, 2018dd