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Usman Alias Kale And Ors. vs State on 30 January, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : January 30th, 2018

+ CRL.A. 93/2015

USMAN ALIAS KALE AND ORS. ….. Appellants

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

Ms. Amita Gupta, Mr. Rugha
Ram, Ms. Priti Yadav,
Advocates for appellant No.2
and 4.

Mr. Ajay Verma, Mr. Upender
Yogesh, Ms. Katyayini,
Advocates for appellant – Iqbal.

versus

STATE ….. Respondent

Through: Ms. Aashaa Tiwari, Additional
Public Prosecutor for the State
with Inspector Ms.Kamini
Gupta, Police Station South
Campus, Delhi.

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

HON’BLE MR. JUSTICE P.S.TEJI

Crl.A. 93/2015 Page 1 of 48
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 the
Cr.P.C. against the judgment dated 14.10.2014 whereby the
appellants have been convicted under Section 365/34,
376(2)(g), 506/34 IPC, and against the order on sentence dated
20.10.2014, whereby the appellants have been sentenced to life
imprisonment along with fine of Rs.25,000/- each and in default
of payment of fine to further undergo six months imprisonment
under Section 376(2)(g) IPC; to undergo rigorous imprisonment
for seven years with fine of Rs.25,000/- and in default of
payment of fine to further undergo six months imprisonment
under Section 365/34 IPC; and to undergo five years rigorous
imprisonment under Section 506/34 IPC.

2. Factual matrix, emerging from the record, is that
the prosecutrix and her friend, both BPO employees, on the
night intervening 23.11.2010 and 24.11.2010 were dropped by
their office cab near M/s Sharma Automobiles, Moti Bagh, New
Delhi. The prosecutrix was abducted by the appellants at about
1.10-1.15 a.m. in Mahindra Pick Up vehicle, while she and her
friend (PW2) were walking to their home. At about 1.30 a.m.,
friend of the prosecutrix PW2 made a complaint to the police

Crl.A. 93/2015 Page 2 of 48
with regard to abduction of the prosecutrix in a matador tempo
vehicle by armed persons and disclosed that they had taken the
Ring Road. The said information was recorded in Police
Station Dhaula Kuan vide DD No.3A. Police team reached the
place of abduction of the prosectrix and met the eye
witness/friend of the prosecutrix PW2. In the meantime, the
witness (PW2) informed the police that she received a call from
the prosecutrix that she was in Mangolpuri. At about 2.25 a.m.,
the prosecutrix made a call to the police control room that she
was dropped by some boys near T-2/190, Phase-1, Mangolpuri
Industrial Area after being kidnapped and raped. The said
information was recorded in Police Station Mangolpuri vide DD
No.15A.

3. The police team reached Mangolpuri and recovered
the prosecutrix from where she was brought to Police Station
Dhaula Kuan. Her statement was recorded in which she stated
that at about 1.10 a.m., she and her friend were dropped by
office cab near Sharma Automobiles, Moti Bagh. When they
started walking towards their residence, one white colour pick
up vehicle came there from behind and stopped near them.
Three boys were sitting in front and two boys were at the back
of the vehicle. Three boys who were sitting on the front came
out of their vehicle, one of them showed a pistol and abused
them and then they grabbed the prosecutrix. They also tried to
grab the friend of the prosecutrix PW2 and they both started

Crl.A. 93/2015 Page 3 of 48
screaming, upon which they took the prosecutrix inside the
vehicle and took the vehicle towards Dhaula Kuan on Ring
Road. Her friend (PW2) ran away from the spot. She further
stated that in the vehicle, one of the boys tore off her
underwear, removed her jeans and raped her in the moving
vehicle. Meanwhile, her mobile phone rang, which was taken
by one of the boys and it was switched off. She had two
mobiles. On the other one, call came from employer, PW3-
Niloy Pramanik. She accepted the call. PW3 could hear and
make out what was going on. The accused did not come to
know of the other mobile phone. The vehicle was driven very
fast and stopped at a lonely place at Mangolpuri. All the three
boys sitting in the front portion of the vehicle took the
prosecutrix to the rear open portion. There was a mattress on
the floor of the rear portion where all the five boys raped her
one by one. Thereafter, the proescutrix was dumped near
Mangolpuri Industrial Area. The prosecutrix made a call to her
superior Niloy Pramanik (PW3) and apprised him about the
incident and then called her friend (PW2).

4. On the basis of statement of the prosecutrix, FIR
No.248/2010 was registered in Police Station Dhaula Kuan.
Statements of witnesses, and supplementary statement of the
prosecutrix were recorded. Prosecutrix was sent to hospital for
medical examination. After her medical examination, exhibits
were seized. The Investigating Officer visited the spot and

Crl.A. 93/2015 Page 4 of 48
prepared a site plan. Exhibits were sent to FSL for DNA
fingerprinting. 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-
accused Shahid had surrendered in Faridabad Court on
26.11.2010 in connection with an old case. They both led the
police party and got recovered Mahindra Pick Up vehicle
bearing registration No.HR-27J-0964 which was involved in the
crime. The said vehicle was seized by the police. Both these
accused also identified the place from where they kidnapped the
prosecutrix and the spot at Mangolpuri Industrial Area where
she was raped. The said vehicle was got inspected and
photographed. Both accused Usman and Shamshad were
identified by the prosecutrix during their Test Identification
Parade (TIP).

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

Crl.A. 93/2015 Page 5 of 48
arrested in the present case. He also refused to participate in the
TIP. Accused Usman got recovered one country made revolver
form his house which was seized after preparing its sketch. He
also got recovered one shirt and one pant from his house which
was allegedly worn by him at the time of incident. The said
clothes were seized. Accused Shahid @ Billi, Iqbal @ Billi and
Shamshad @ Khutkan got recovered their clothes from their
house which they were wearing at the time of incident and the
same were seized. The prosecutrix identified all the accused
persons and the vehicle used in the crime. The exhibits were
sent to FSL for examination. The hair strand of the prosecutrix
was obtained. The country made revolver and other samples
were sent to laboratory. The seized vehicle was found to be
registered 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 said
vehicle was being driven by his brother Usman @ Kale.

6. The Investigating Officer obtained the call detail
records of mobile phones of accused persons and prosecutrix.
PCR form and log book were seized from the Police Control
Room. After completion of investigation, charge sheet was
filed in the Court.

7. Charges under Section 365/34, 376(2)(g) and
506/34 IPC were framed against all the appellants. Charge
under Section 25/27/54/59 Arms Act was framed against

Crl.A. 93/2015 Page 6 of 48
appellant Usman @ Kale. Appellants pleaded not guilty and
claimed trial.

8. To prove its case, the prosecution examined 57
witnesses. After conclusion of prosecution evidence, statements
of the appellants under Section 313 Cr.P.C. were recorded in
which they denied all the allegations. In their defence, the
appellants examined 10 defence witnesses.

9. We have heard the arguments advanced by the
learned counsel for the appellants as well as learned Additional
Public Prosecutor for the State. We have meticulously gone
through the submissions made by the parties and the evidence
and material available on record.

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

Crl.A. 93/2015 Page 7 of 48
and the blood belonged to the prosecutrix, but as per the
testimony of the prosecutrix and the doctor who examined her,
there was no injury on the person of the prosecutrix, which
creates doubt about the blood found on the clothes of accused
Usman. It is further submitted that the arrest of the accused
persons has also not been proved convincingly by the
prosecution which creates doubt about the manner in which they
were arrested.

11. The prosecution case is based mainly on the
statement of the prosecutrix. The prosecutrix (PW1) in her
deposition before the Court has deposed that on 24.11.2010, she
was residing at 11/78, First Floor, Village Moti Bagh, New
Delhi on rent. At that time she was employed with Convergys
India Pvt. Ltd., Gurgaon. Her office timings were different on
different days. On 23.11.2010, her office timings were form 3
p.m. to 12 midnight i.e. on the intervening night of
23/24.11.2010. She used to go to her office and come back by
office cab. She left her office on that day at 12.40 a.m. In the
office cab, besides the driver and the guard, there were seven
persons from the same office. The prosecutrix was sitting at the
rear seat and her friend ‘S’ (PW2) was also in the same cab and
was sitting on the front seat on the rear portion of the cab. At
about 1-1.15 a.m., she and her friend were dropped by the cab
near Sharma Automobiles. At that time, her friend was residing
in her neighbourhood. After being dropped by the cab, they

Crl.A. 93/2015 Page 8 of 48
started walking towards their house. They had just covered the
distance of about 2-3 meters when a white pick up van came
from behind onto their right side. Three persons got down from
the front of the van and grabbed the prosecutrix. One of the
three persons showed a pistol like object, whereafter she and her
friend started shouting for help but nobody came. The three
persons then pulled her inside the front portion of the van,
reversed the vehicle and drove towards Dhaula Kuan. Her
friend was struggling to free herself since those persons had
tried to pull her also inside the van, but since the prosecutrix
was nearer, she was pulled inside the van and her friend was
able to free herself. In the front portion of the van, the person
sitting on her right side tried to cover her mouth and her face
with his hand. The person sitting on her left side was pointing a
pistol at her. At that time, the prosecutrix was carrying two
mobile phones, one of which was in her right side pocket and
the other in her left side jeans pocket. One of the phones rang,
upon which the person sitting on her right side and left side
searched her pockets. The person on her right side found one of
her phones and handed over the same to the person sitting on
the left who kept the same on the dash board of the van after
switching it off. The other mobile phone which was in her left
side pocket was ringing continuously but she kept on pressing
the reject button. Thereafter she managed to take out her phone
and keep it in her jacket, thinking that if she answered the call
then her friend and police may be able to trace her call and thus

Crl.A. 93/2015 Page 9 of 48
she pressed the answer button. During this period, the vehicle
was being driven and the person sitting on her left side tore her
underwear, removed her jeans and started raping her. After
sometime, the vehicle stopped at a place where several trucks
were parked and three persons who were in front of the vehicle
were talking with each other. She could not understand what
they were talking amongst themselves as she was not aware of
Hindi language much. After stopping the vehicle for about 2-3
minutes, the said persons drove away and the prosecutrix saw a
board that read Mangolpuri. The vehicle was driven round and
round and then stopped at a place which was a kind of dump
area. The said persons asked her to get down from the van and
took her to the back portion of the van. There was a mattress
lying on the back portion on which the five persons-including
the three who were sitting with her at the front portion, raped
her one after the other. On asking them to stop, one of them
slapped her saying “chup chup”. Thereafter, the said persons
again drove the vehicle towards the main road while she was
sitting at the back with two persons. At one point, the vehicle
was again stopped and she was told by one of them to get down.
After she got down, they drove away the vehicle. When she
looked at the back portion of the vehicle to note down its
registration number, she saw that there was no number plate.
She saw that some decoration was made at the rear portion of
the vehicle. When she took out her phone from the pocket of
her jacket, she realised that it was on answer mode and her boss

Crl.A. 93/2015 Page 10 of 48
Niloy Pramanik (PW3) was on line and she talked to him who
had already heard as to whatever happened with her as her
phone was on answer mode/call was still connected. She told
her boss that she would talk to her friend and she ended the call,
after which she called her friend. She could not tell her friend
exactly as to where she was at that time. Her friend suggested
that she should call the police on number 100 after which she
called the police and asked if they could speak in English. The
call was initially attended by a lady police official and thereafter
by a male police official, both of whom spoke in English. They
advised her to go around and point some identification of the
area while the phone was still on. She moved from that place
and saw some house with address written on it, and the same
was the industrial area Mangolpuri. She informed the police
about the said address who told her that police van would reach
there. After sometime, the police van came to the spot and took
her to the police station which she believed to be PS
Mangolpuri. From there, she was taken by the police to Police
Station Dhaula Kuan where several of her friends, office staff
and Mizo welfare leaders were present. Thereafter, she was
taken to Safdarjung Hospital for her medical examination by the
police. Thereafter, she was taken back to the Police Station
Dhaula Kuan where her statement Ex.PW1/A was recorded.

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

Crl.A. 93/2015 Page 11 of 48
and some of them were pulled and kept in an envelope. The
doctor had prepared some document and she had signed the
same. She had identified her signature on her MLC. She was
also taken by the police to Tihar Jail in 2010, where she
identified two boys involved in the incident. She further stated
that vide her statements Ex.PW1/B and Ex.PW1/C respectively
she had identified two accused persons in the TIP proceedings.
She further deposed that on the day of incident, she was
wearing black jean, shirt, bra, underwear and jacket, and except
jacket, all her clothes were taken by the doctor. She identified
her jean as Ex.P1, T-shirt as Ex.P2, panty as Ex.P3 and bra as
Ex.P4 in the Court. She had identified all the accused persons
who committed rape upon her on the day of incident and
specifically attributed the role played by them. She had also
identified the vehicle in question as Ex.P5 and pistol as Ex.P6.
She also stated that vide seizure memo Ex.PW1/E, her hair were
seized in AIIMS Hospital.

13. The prosecutrix (PW1) was cross-examined at
length by the defence. During her cross-examination, she stated
that she and her friend left the office at around 12.40 a.m. They
had returned from their office in the office cab. Her friend was
residing in the same building where she was residing but in a
different room. She stated that the distance between Sharma
Automobiles-where the cab had dropped them, and the building
where she was residing must be around 100 meters. There was

Crl.A. 93/2015 Page 12 of 48
no traffic on the road at that time. Sharma Automobiles was
just near the place where they were dropped by the cab. She
further stated that there were several street lights near the place
where they were dropped by the cab. Within 1-2 minutes of
their being dropped, the vehicle in which she was kidnapped
reached there. Accused Kamruddin caught hold of her first.
She further stated that they all were around her, lifted her and
put her in the pick-up. The person who had kept pistol on her
forehead was having pistol in his right hand and he had put his
left hand round her neck. Their faces were not muffled. Except
one person who had ‘bandana’ on his forehead, the head of
other persons was not covered. She further stated that when ‘S’
(PW2) tried to free her from the said accused, one of them had
pointed the pistol towards her and thereafter she started running.
She further stated that it took 2-3 minutes-when the vehicle in
question stopped near them, and she was then removed inside
the vehicle. She denied that she had not shouted ‘help-help’. In
the front portion of the vehicle, there were four persons; one
was the driver; one was sitting on her right and one person was
sitting on her left. She further stated that her underwear was
torn first by the person sitting on her left and thereafter her
jeans was removed. She was sitting on the front portion of the
vehicle where she was raped. She could not attempt to save
herself at that time since a pistol was being pointed to her. She
was slapped by both the persons several times. At the time of
incident, she was wearing jacket, T shirt, bra, jeans and panty.

Crl.A. 93/2015 Page 13 of 48

She had taken out her mobile phone from the pocket of jeans
and kept the same in her jacket before she was raped in the
cabin. Till that time she did not know how many persons were
sitting in the rear portion of the vehicle. After sometime of her
being raped in the front portion of the vehicle, the vehicle was
stopped at a place where several trucks were standing. The
vehicle had stopped there for about 2 to 3 minutes. She had
seen the board on which ‘Mangolpuri’ was written. The vehicle
was driven on a round about, before it finally stopped near the
dump area. The dump place was situated in the Mangolpuri
Industrial area. She further stated that accused Shahid had
slapped her. The accused persons had not removed their
clothing before doing the act but had only pulled down their
respective pants. She further stated that after the incident, she
had seen two of the accused persons for the first time in Tihar
Jail during TIP proceedings. She also stated that some of the
accused persons were brutal towards her while committing the
rape, however she did not sustain any injury on any part of her
body and she did not see any bleeding on any part of her body.
She denied that since it was a media hyped case and police was
under pressure and, as such, police forced her to identify
accused Usman and Shamshad in TIP proceedings.

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

Crl.A. 93/2015 Page 14 of 48
year 2007, she along with prosecutrix was working with
Convergys, Gurgaon. She left the job in the month of May
2011, whereas the prosecutrix left the job after the incident. On
24.11.2010, she and the prosecutrix were residing at Moti Bag
in the same building in separate rooms as tenants. Their shift
was from 2.30 p.m. to 12 midnight during those days. On that
day, they both had gone to the office via office cab. It was
intervening night of 23/24.11.2010. Around 1.05/1.10 a.m.,
their cab dropped them on the highway, and their house was
situated at 10 minutes walking distance. While they were
walking towards their house, one vehicle came from behind
which was a pick-up and it stopped just ahead of them. There
were three boys in front of the vehicle and two boys were in the
rear portion. All the five persons got down from the vehicle and
the prosecutrix who was standing near the vehicle, was grabbed
by the boys who had got down from the front of the vehicle.
They started screaming but not too loudly, since they were
scared as one of those boys was armed with a gun. When PW2
attempted to save the prosecutrix who was grabbed by those
persons, the boy who was holding pistol pointed out the same
towards the head of PW2, she started screaming, holding her
head to save it and started moving away from him. When she
started screaming, the boys did not follow her and she ran away
from there. She further deposed that she just watched her friend
being taken away in the front portion of the vehicle. PW2
further stated that she had informed the police on 100 number.

Crl.A. 93/2015 Page 15 of 48

Thereafter, the police came at the spot which was near Sharma
Automobiles. After about 45 minutes, PW2 received a call
from the prosecutrix. PW2 was informed by the prosecutrix
that she was raped by all the five accused who had taken her
away and that she had been dropped near some industrial area,
but she was unable to confirm the location, so PW2 advised her
to call the police on 100 number. Thereafter, she met the
prosecutrix 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 further
stated that the vehicle in which the prosecutrix was taken away
was Mahindra pick-up of white colour and top of the back was
open. The number of the vehicle was HR 27J 0964 which PW2
had seen when she had identified the vehicle at PS Dhaula Kuan
on 09.12.2010. She identified the vehicle as Ex.P5. PW2 had
identified all the accused persons in the Court as the one who
were present at the spot from where the prosecutrix was
kidnapped. She further stated that on 25.11.2010, she along
with the prosecutrix had accompanied the police to the spot
where she had been raped. On 10.12.2010, she along with the
prosecutrix had gone to PS Vasant Vihar where she and the
prosecutrix had identified all the five accused persons.

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

Crl.A. 93/2015 Page 16 of 48
from the vehicle and they grabbed the prosecutrix. She also
admitted that the said boys tried to grab her also. She also
stated that accused Shahid @ Billi, Kamruddin @ Kamru @
Mobile and Shamshad @ Khutkan were sitting in the front
portion of their vehicle, and those three boys came out of the
vehicle and accused Kamruddin had shown pistol like thing,
abused them and that accused Iqbal @ Billi and Usman @ Kale
were sitting in the back portion of the vehicle. She also
admitted having stated that on 10.12.2010, the doctor had
removed and preserved the hair of the prosecutrix and the same
were seized vide memo Ex.PW1/E.

16. PW2 was cross-examined at length by the defence.
During cross-examination by the defence counsel, PW2 stated
that she had been using spectacles since December, 2010. She
denied that at the time of incident she was unable to witness the
incident as she was not using spectacles. She had informed the
police 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 the
offending vehicle was Metador tempo as she was in shock. The
prosecutrix had called her after 2 a.m. PW2 had advised the
prosecutrix to call police on 100 number. When prosecutrix
was being lifted from the spot, they had raised alarm but no one
was around to reach there. There were three persons who came
from the vehicle to grab them. She was standing in front of the

Crl.A. 93/2015 Page 17 of 48
boy who was holding pistol at a distance of about 1 foot. There
was light at the spot. She had given the description of the
vehicle and it was of white colour. They had hardly walked for
10 steps when the offence vehicle reached there. At that time
they were near Sharma Automobiles.

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

Crl.A. 93/2015 Page 18 of 48
male voices also saying ‘Tu Ro kyon rahi hai, humara kaam
nipat jayega to tujhe chhod denge’. That continued for about
20-25 minutes. After sometime, the line was disconnected.
Then he received a call from the prosecutrix who told him that
she had been raped by five persons. PW3 asked her as to where
she was and she told him that she was somewhere in
Mangolpuri. She also told that she was dropped at Mangolpuri
by the vehicle. She told him that she would call him later as she
had some PCR Van there. Thereafter, he immediately left for
Dhaula 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 that
when he made a call to the prosecutrix, he was at home. He
only moved from his home when the prosecutrix had called him
stating that she had been dropped at Mangolpuri. The
prosecutrix did not call him after being raped and before she
was dropped at Mangolpuri. He reached PS Dhaula Kuan at
about 2.30 or 3/3.15 a.m. He started making calls to the
prosecutrix at about 1.15 a.m. He made continuous calls 3-4
times but she had not picked her phone. Then he had made a
call to his Manager who directed him to make calls to the
prosecutrix. After gap of 5-10 minutes, he again started calling
the prosecutrix. When the first time his call was connected with
the prosecutrix, she could not talk but remained connected for

Crl.A. 93/2015 Page 19 of 48
about 20-25 minutes and thereafter the line was disconnected.
The second time when the call was materialized, he had
conversation with the prosecutrix who disclosed that she had
been raped by five persons and she was crying. On asking, she
told that she was in the area of Mangolpuri.

19. The Supreme Court in the case of State of Punjab
v. Gurmit Singh and others AIR 1996 SC 1393, while relying
upon the testimony of the prosecutrix has observed that the
testimony of a prosecutrix alone is sufficient to base the
conviction of an accused, which needs no corroboration. It was
held that :

“9. The grounds on which the trial court
disbelieved the version of the prosecutrix
are not at all sound. The findings
recorded by the trial court rebel against
realism and lose their sanctity and
credibility. The court lost sight of the fact
that the prosecutrix is a village girl. She
was student of Xth Class. It was wholly
irrelevant and immaterial whether she
was ignorant of the difference between a
Fiat, an Ambassador or a Master car.
Again, the statement of the prosecutrix at
the trial that she did not remember the
colour of the car, though she had given
the colour of the car in the FIR was of no
material effect on the reliability of her
testimony. No fault could also be found
with the prosecution version on the

Crl.A. 93/2015 Page 20 of 48
ground that the prosecutrix had not raised
an alarm while being abducted. The
prosecutrix in her statement categorically
asserted that as soon as she was pushed
inside the car she was threatened by the
accused to keep quiet and not to raise any
alarm otherwise she would be killed.
Under these circumstances to discredit
the prosecutrix for not raising an alarm
while the car was passing through the
Bus Adda is travesty of justice. The court
over-looked the situation in which a poor
helpless minor girl had found herself in
the company of three desperate young
men who were threatening her and
preventing her from raising any
alarm…Her statement about the manner
in which she was abducted and again left
near the school in the early hours of next
morning has a ring of truth. It appears
that the trial court searched for
contradictions and variations in the
statement of the prosecutrix
microscopically, so as to disbelieve her
version…..In the normal course of
human conduct, this unmarried minor
girl, would not like to give publicity to
the traumatic experience she had
undergone and would feel terribly
embarrassed in relation to the incident to
narrate it to her teachers and others
overpowered by a feeling of shame and
her natural inclination would be to avoid

Crl.A. 93/2015 Page 21 of 48
talking about it to any one, lest the family
name and honour is brought into
controversy. Therefore her informing to
her mother only on return to the parental
house and no one else at the examination
center prior thereto is an accord with the
natural human conduct of a female. The
courts must, while evaluating evidence,
remain alive to the fact that in a case of
rape, no self respecting woman would
come forward in a court just to make a
humiliating statement against her honour
such as is involved in the commission of
rape on her. In cases involving sexual
molestation, supposed considerations
which have no material effect on the
veracity of the prosecution case or even
discrepancies in the statement of the
prosecutrix should not, unless the
discrepancies are such which are of fatal
nature, be allowed to throw out an
otherwise reliable prosecution case. The
inherent bashfulness of the females and
the tendency to conceal outrage of sexual
aggression are factors which the Courts
should not over-look. The testimony of
the victim in such cases is vital and
unless there are compelling reasons
which necessitate looking for
corroboration of her statement, the
courts should find no difficulty to act
on the testimony of a victim of sexual
assault alone to convict an accused

Crl.A. 93/2015 Page 22 of 48
where her testimony inspires
confidence and is found to be reliable.

Seeking corroboration of her
statement before relying upon the
same, as a rule, in such cases amounts
to adding insult to injury. Why should
the evidence of a girl or a woman who
complains of rape or sexual
molestation, be viewed with doubt,
disbelief or suspicion? The Court while
appreciating the evidence of a
prosecutrix may look for some
assurance of her statement to satisfy
its judicial conscience, since she is a
witness who is interested in the
outcome of the charge leveled by her,
but there is no requirement of law to
insist upon corroboration of her
statement to base conviction of an
accused. The evidence of a victim of
sexual assault stands almost at par
with the evidence of an injured witness
and to an extent is even more reliable.
Just as a witness who has sustained
some injury in the occurrence which is
not found to be self inflicted, is
considered to be a good witness in the
sense that he is least likely to shield the
real culprit, the evidence of a victim of
a sexual offence is entitled to great
weight, absence of corroboration
notwithstanding. Corroborative
evidence is not an imperative

Crl.A. 93/2015 Page 23 of 48
component of judicial credence in
every case of rape. Corroboration as a
condition for judicial reliance on the
testimony of the prosecutrix is not a
requirement of law but a guidance of
prudence under given circumstances.
It must not be over-looked that a
woman or a girl subjected to sexual
assault is not an accomplice to the
crime but is a victim of another
person’s lust and it is improper and
undesirable to test her evidence with a
certain amount of suspicion, treating
her as if she were an accomplice.
Inferences have to be drawn from a
given set of facts and circumstances
with realistic diversity and not dead
uniformity lest that type of rigidity in
the shape of rule of law is introduced
through a new form of testimonial
tyranny making justice a casualty.
Courts cannot cling to a fossil formula
and insist upon corroboration even if,
taken as a whole,the case spoken of by
the victim of sex crime strikes the
judicial mind as probable. In State of
Maharashtra v. Chandraprakash
Kewalchand Jain MANU/SC/0122/1990
: 1990 CriLJ 889 Ahmadi, J. (as the Lord
Chief Justice then was) speaking for the
Bench summarised the position in the
following words :

Crl.A. 93/2015 Page 24 of 48

“A prosecutrix of a sex offence
cannot be put on par with an
accomplice. She is in fact a victim
of the crime. The Evidence Act
nowhere says that her evidence
cannot be accepted unless it is
corroborated in material
particulars. She is undoubtedly a
competent witness Under Section
118 and her evidence must receive
the same weight as is attached to
an injured in cases of physical
violence. The same degree of care
and caution must attach in the
evaluation of her evidence as in
the case of an injured complainant
or witness and no more. What is
necessary is that the court must be
alive to and conscious of the fact
that it is dealing with the evidence
of a person who is interested in the
outcome of the charge leveled by
her. If the court keeps this in
mind and feels satisfied that it
can act on the evidence of the
prosecutrix, there is no rule of
law or practice incorporated in
the Evidence Act similar to
illustration (b) to Section 114
which requires it to look for
corroboration. If for some reason
the court is hesitant to place
implicit reliance on the testimony

Crl.A. 93/2015 Page 25 of 48
of the prosecutrix it may look for
evidence which may lend
assurance to her testimony short of
corroboration required in the case
of an accomplice. The nature of
evidence required to lend
assurance to the testimony of the
prosecutrix must necessarily
depend on the facts and
circumstances of each case. But if
a prosecutrix is an adult and of
full understanding the court is
entitled to base a conviction on
her evidence unless the same is
shown to be infirm and not
trustworthy. If the totality and
the circumstances appearing on
the record of the case disclose
that the prosecutrix does not
have a strong motive to falsely
involve the person charged, the
court should ordinarily have no
hesitation in accepting her
evidence.” (emphasis supplied)

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

“14. Thus, the law that emerges on the
issue is to the effect that the statement of
the prosecutrix if found to be worthy of
credence and reliable, requires no

Crl.A. 93/2015 Page 26 of 48
corroboration. The Court may convict the
accused on the sole testimony of the
prosecutrix.”

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

“31. No doubt, it is true that to hold an
accused guilty for commission of an
offence of rape, the solitary evidence of
prosecutrix is sufficient provided the
same inspires confidence and appears to
be absolutely trustworthy, unblemished
and 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. We do not have the slightest
hesitation in accepting the broad
submission of Mr. Jain that the
conviction can be based on the sole
testimony of the prosecutrix, if found
to be worthy of credence and reliable
and for that no corroboration is
required. It has often been said that oral
testimony can be classified into three
categories, namely (i) wholly reliable, (ii)
wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. In case of
wholly reliable testimony of a single
witness, the conviction can be founded
without corroboration. This principle
applies with greater vigour in case the

Crl.A. 93/2015 Page 27 of 48
nature of offence is such that it is
committed in seclusion.” (emphasis
supplied)

23. From the testimony of the prosecutrix (PW1), the
incident of commission of rape upon her has duly been
established. Even the appellants/accused do not raise any doubt
about the fact that the prosecutrix was, indeed, raped on the
fateful night. The prosecutrix has categorically stated that on
the fateful night, after being dropped by the office cab, when
she was going towards her house along with her friend (PW2), a
van came there and kidnapped her on the point of pistol. She
has also stated that her friend was also tried to be pulled inside
the said van, but she somehow managed to flee from the
clutches of the appellants and ran away from the spot of her
kidnapping. The prosecutrix has narrated the entire incident.
She has stated that after being pulled inside the vehicle, three
appellants started misbehaving with her and then one appellant
tore her underwear/panty; removed her jeans and then
committed rape upon her. Thereafter, she was taken in the said
vehicle to the area of Mangolpuri where she was taken to the
rear portion of the vehicle where all the appellants committed
rape upon her. She also stated that she was dumped in
Mangolpuri Industrial Area from where she made a call to her
friend (PW2) and also spoke to her boss/superior (PW3). She
also stated that on the advice of her friend (PW2), she made a
call to the police control room at number 100 upon which the

Crl.A. 93/2015 Page 28 of 48
police team reached the spot and then she was taken to the
Police Station Dhaula Kuan. In the Police Station Dhaula
Kuan, her statement was recorded and thereafter she was sent to
the hospital for medical examination. She has correctly
identified all the appellants in the Court by stating that out of
those persons, three persons kidnapped her, one appellant
committed rape upon her at the front portion of the vehicle, and
then she was raped by all the appellants in the rear portion of
the vehicle. She has also testified with regard to handing over
of her clothes to the police, her medical examination and taking
of her hair sample by the doctor.

24. Testimony of the prosecutrix (PW1) has duly been
corroborated by her friend (PW2) who was an eye witness to the
incident of kidnapping of the prosecutrix by the appellants.
PW2 has specifically stated that on that fateful night, she along
with prosecutrix were dropped near Sharma Automobiles by
their office cab and they were in the process of walking towards
their house. In the meanwhile, one white colour pick up vehicle
came from behind and stopped in front of them. Three
appellants got down from the vehicle. Out of those, one showed
pistol like object to them and took the prosecutrix inside the
vehicle. They also tried to take her (PW2) inside the vehicle,
but she somehow managed to free herself and ran away from
there. She saw all the five appellants taking away the
prosecutrix in the said vehicle and then the police was informed

Crl.A. 93/2015 Page 29 of 48
about the kidnapping of the prosecutrix. PW2 also corroborated
that after about 45 minutes she received a phone call from the
prosecutrix to the effect that she was left by five boys at
Mangolpuri Industrial Area after being kidnapped and raped.
She advised the prosecutrix to inform the police at number 100
first, and on her advice the prosecutrix informed the police
about the incident. She further corroborated that thereafter the
prosecutrix was brought to Police Station Dhaula Kuan where
her statement was recorded and then she was taken to the
hospital for medical examination.

25. PW3 Niloy Pramanik also corroborated the
testimony of prosecutrix (PW2). PW3 stated that the
prosecutrix was working with him as Senior Customer Care
Officer for the last about two years. On the fateful night, he
received a telephonic call from his office that the prosecutrix
had been kidnapped upon which he tried to contact the
prosecutrix by making calls on her mobile phone. Initially, the
phone of the prosecutrix kept on ringing but she did not pick up
the phone, but after sometime the call made by him was
connected, but there was no response from the other side. He
categorically stated that while the call was still on, he heard the
voices of the prosecutrix and male voices. He stated that the
prosecutrix was crying and asking for letting her go. He also
heard the male voices saying why the prosecutrix was weeping
and that she would be left once they are done. The said call

Crl.A. 93/2015 Page 30 of 48
lasted for about 20-25 minutes and after sometime, the said call
was disconnected. Thereafter, he received a call from the
prosecutrix who informed PW3 that she was raped by five
persons. She also informed that she was left at Mangolpuri.

26. So far as the contention of the appellants that they
were shown to the prosecutrix before conducting their TIP,
therefore, no negative inference can be drawn against them and
for refusing to participate in the TIP is concerned, the same is
completely unfounded. It is matter of record that appellants,
namely, Usman and Shamshad were identified by the
prosecutrix during their TIP proceedings as the culprits who
committed rape upon her on the day of incident. So far as the
other appellants are concerned, apart from their ipse dixit that
they had been shown to the prosecutrix, there is no basis
disclosed by the accused to lay such a claim. No justification
has been probabalised by the said accused to refuse TIP. The
prosecutrix during her examination before the trial court has
duly identified all the accused persons and narrated the role of
each and every accused who had kidnapped her and committed
gang rape upon her. There is nothing in the testimony of the
prosecutrix which runs contrary to her accusations against the
appellants. Even, PW2-friend of the prosecutrix also identified
the accused persons as the culprits who on the fateful night, had
kidnapped the prosecutrix and took away her along with them
who was later on raped by the accused persons. Thus, the

Crl.A. 93/2015 Page 31 of 48
identity of the appellants has been duly established on record
from the TIP proceedings of accused Usman and Shamshad;
testimony of prosecutrix (PW1), and; her friend (PW2).

27. While dealing the relevancy of test identification
parade of an accused, and refusal of the accused to participate in
the same, the Supreme Court in the case of Munna vs. State
(NCT of Delhi) (2003) 10 SCC 599 held that in a case where a
accused himself refuses to participate in a test identification
parade, it is not open to him to contend that the statement of the
eye-witnesses made for the first time in Court-wherein they
specifically point towards him as a person who had taken part in
the commission of crime, should not be relied upon. This plea
is available, provided the prosecution is itself responsible for
not holding a test identification parade. However, in a case
where the accused himself declines to participate in a test
identification parade, the prosecution has no option but to
proceed in a normal manner like all other cases and rely upon
the testimony of the witnesses, which is recorded in Court
during the course of the trial of the case.

28. In the case of Nazim Khan @ Guddu v. State 2014
SCC OnLine Del 2938, it was held thus:

“17. It, therefore, is clear that the test
identification parade report although is
not a substantive evidence but can be
used only for the purpose of

Crl.A. 93/2015 Page 32 of 48
corroboration. There can be two results
of test identification parade. Firstly, the
refusal to participate in the test
identification parade by the appellant
is without any justification. Such a
refusal is a piece of evidence and the
courts can take an adverse inference
against the accused that if he would
have participated in the test
identification parade, he would have
been identified by the witness and the
refusal can be used to corroborate the
dock identification by witness.

Secondly, the accused has a justifiable
reason to refuse to participate in the test
identification parade. Where accused has
justifiable reason, no adverse inference
can be taken against him.” (emphasis
supplied)

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

“21. The abovementioned decisions
would indicate that while the evidence of
identification of an accused at a trial is
admissible as substantive piece of
evidence, it would depend on the facts of
a given case as to whether or not such a
piece of evidence can be relied upon as
the sole basis of conviction of an
accused. In Malkhansingh v. State of
M.P., this Court clarified that the test
identification parade is not a substantive

Crl.A. 93/2015 Page 33 of 48
piece of evidence and to hold the test
identification parade is not even the rule
of law but a rule of prudence so that the
identification of accused inside the
courtroom at the trial can be safely relied
upon. We are of the view that if the
witnesses are trustworthy and reliable,
the mere fact that no test identification
parade was conducted, itself, would not
be a reason for discarding the evidence of
those witnesses…..”

29. Therefore, in view of present set of circumstances
and the law laid down as discussed above, an adverse inference
is warranted against the appellants, namely, Shahid @ Billi,
Iqbal @ Billi and Kamruddin @ Kamru @ Mobile as they
refused to participate in the TIP proceedings, whereas
appellants-Usman and Shamshad were duly identified by the
prosecutrix during their TIP proceedings.

30. Argument advanced by the learned counsel for the
appellant was that as per the prosecution, the samples from the
vehicle were collected after about 10 days of the alleged
incident of rape which creates doubt about the prosecution story
and 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 27J
0964 in which the rape was allegedly committed upon the
prosecutrix, was seized vide seizure memo dated 02.12.2010,

Crl.A. 93/2015 Page 34 of 48
Ex.PW48/H. It is further apparent from the record that the
accused Shamshad @ Khuktan was arrested on 02.12.2010 vide
arrest memo Ex.PW48/D and thereafter his disclosure statement
Ex.PW48/F was recorded on the same day. As per the
testimony of FSL expert Sh.A.K. Srivasatava (PW7), the said
vehicle was examined by the team of FSL experts on
02.12.2010 itself, and samples were drawn from the same and
seized. Therefore, there is no force in the contention of the
appellant that there is delay of 10 days in collecting samples
from the vehicle for the reasons that the vehicle in question was
seized only on 02.12.2010, and that too after the arrest of
accused Shamshad @ Khutkan and upon his disclosure, the
same was seized and then examined by the FSL experts which
led to the seizure of samples from the said vehicle.

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

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

Crl.A. 93/2015 Page 35 of 48
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 results
of the case.” The explanation given by the witness (PW7) for
returning some exhibits unexamined was that the other exhibits
were sufficient to prove the case and there was no necessity to
examine all the exhibits. Similarly, during his cross-
examination, PW7 stated that out of 56 samples, 27 forensic
samples were examined by him. On a specific question as to
why did he return the 1A, 1B, 1C, 1D, 1E, 1F, 1H, 1I and 1L,
PW7 stated that he did not examine the same because those
were not required for examination. So, PW7 has properly
explained the reasons for returning some samples without
examination, and the appellants cannot get any benefit of the
same.

34. The next contention of the learned counsel for the
appellants relates to their arrest, and the recoveries made
thereafter. It was contended on behalf of the appellants that the
appellants were picked up from different places and then falsely
booked in the present case by showing their arrest from their
native places. It was further contended that the recoveries, as
alleged, are planted ones by the police, just to make out a case
against them, as the police as well as prosecution was under
pressure to solve the case.

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

Crl.A. 93/2015 Page 36 of 48

PW48 had deposed that on that day he along with SI Sandeep
Sharma (PW52) and Insp. Raj Kumari (PW56) with police staff,
on the basis of a secret information, took their position at the
spot. He further deposed that at about 2.00 a.m., they saw a
motorcycle coming towards them from the side of village
Dhauj. They overpowered those persons who disclosed their
names as accused Usman @ Kale and Shamshad @ Khutkan.
They were arrested vide arrested memos Ex.PW48/A and
Ex.PW48/D. Their personal searches were conducted vide
memos Ex.PW48/B and Ex.PW48/E respectively. Their
disclosure statements Ex.PW48/C and Ex.PW48/F were
recorded. The said motorcycle was seized vide memo
Ex.PW48/G.

36. So far as accused Shahid @ Billi is concerned, it is
apparent from the record that he was lodged in Neemka Jail,
Ballabhgarh, Haryana and the said fact was disclosed by
accused Usman and Shamshad. Production warrants for the
production of accused Shahid was got issued and he was
produced before the concerned Magistrate on 04.12.2010 when
he was arrested in the instant case vide arrest memo
Ex.PW36/A.

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

Crl.A. 93/2015 Page 37 of 48

point, Sector-56, Sohna, Gurgaon where secret informer met
them. After sometime, the secret informer identified a person
coming from Sohna Road to be accused Iqbal @ Billi. Accused
Iqbal was apprehended and was arrested vide arrest memo
Ex.PW39/A.

38. Deposition regarding arrest of accused Kamruddin
had been made by PW38 HC Umesh Kumar and PW40 HC
Asgar Ali. They have deposed that on 06.12.2010, they along
with SI Virender Prakash and other police staff reached near
village Lakwas on Sohna Ballabhgarh Road where a secret
informer met them and informed that accused Kamruddin was
present in the village. At about 7.00 p.m., the secret informer
pointed towards a boy coming from the side of village as that of
accused Kamruddin. When police party went to apprehend the
accused, he ran towards the fields. He was chased and then
apprehended. 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 colour
shirt and light blue coloured pant from a nail on the wall of a
room stated to be worn by him at the time of incident. Those
articles were seized vide seizure memo Ex.PW48/V.
Thereafter, accused Usman got recovered a desi katta from the
Taand (slab) of the room while disclosing that accused
Kamruddin had used it to terrorize the prosecutrix and PW-2 on

Crl.A. 93/2015 Page 38 of 48
the day of incident. The said katta was seized vide seizure
memo Ex.PW48/X. Similarly, accused Shahid @ Billi led the
police party to his house and got recovered a yellow colour
striped shirt and blue coloured lower having white stripes from
an iron almirah disclosing that he was wearing the same at the
time of incident. The said clothes were seized vide seizure
memo Ex.PW48/Y. Similarly, accused Iqbal @ Billi led the
police party to his house and got recovered a light pink coloured
shirt and light blue and white striped pant from a suitcase
disclosing that he was wearing the said clothes at the time of
incident. The said clothes were seized vide seizure memo
Ex.PW48/Z. Accused Shamshad led the police team to his
house in the same village and got recovered a cream and white
coloured stripe shirt and a blue and black coloured stripe pant
and a round neck sweater from the steel box disclosing that he
was wearing the same clothes at the time of incident. The said
clothes were seized vide seizure memo Ex.PW48/Z1. In the
cross-examination of these prosecution witnesses, there is no
contradiction of gap noticed. Pertinently, no alibi was set up by
the accused, or established on the record by the accused.

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

Crl.A. 93/2015 Page 39 of 48
duly identified the said vehicle during her testimony before the
Court as Ex.P5. Similarly, PW2-friend of the prosecutrix who
is also an eye witness to the incident of kidnapping of the
prosecutrix had also identified the said vehicle as Ex.P5 during
her testimony before the trial court.

41. In the instant case, the recoveries were made at the
instance of the accused persons while they were in custody, and
the same have been duly established with certainty. The police
officials who were part of the investigation when such
recoveries were affected, have remained absolutely unperturbed
and, in fact, nothing has been elicited from them to disprove
their truthfulness.

42. On a studied scrutiny of the arrest memos,
disclosure statements recorded under Section 27 of the Indian
Evidence Act, 1872 and the disclosure made in pursuance
thereof, we find that the recoveries of articles viz. the desi katta
and the vehicle from the custody of the accused persons cannot
be discarded. The articles that have been seized, and the places
from where they have been seized were within the special
knowledge of the accused persons. It is argued before us that
the said recoveries have really not been made from the accused
persons but have been planted by the investigating agency. On a
careful analysis of the evidence of the police officials who were
part of the investigating team, we do not notice anything
doubtful or suspicious in this regard. The contentions advanced

Crl.A. 93/2015 Page 40 of 48
by the counsel for the appellants in this regard, do not impress
us in the least. The Supreme Court in the case of Dhananjoy
Chatterjee alias Dhana Versus State of West Bengal(1994) 2
SCC 220 while dealing with the applicability of Section 27 of
the Evidence Act, observed as under :

“….Though, the entire statement made by
the appellant before the police is
inadmissible in evidence being hit by
Sections 25 and 26 of the Evidence Act
but that part of his statement which led to
the discovery of the shirt and the pant is
clearly admissible under Section 27 of
the Evidence Act. We disregard the
inadmissible part of the statement and
take note only of that part of his
statement which distinctly relates to the
discovery of the articles pursuant to the
disclosure statement made by the
appellant as it is only so much of the
statement made by a person accused of
an offence while in custody of a police
officer, whether it is confessional or not,
as relates distinctly to the fact discovered
which is capable of being proved and
admitted into evidence. The discovery of
the fact in this connection includes the
discovery of an object found, the place
from which it is produced and the
knowledge of the accused as to its
existence.

Crl.A. 93/2015 Page 41 of 48

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 that
on 08.12.2010, he had examined accused Kamru @ Mobile,
Iqbal @ Billi and Shahid @ Billi and opined that there was
nothing to suggest that they were incapable of performing
sexual intercourse under ordinary circumstances. He also
deposed that he had preserved the blood in gauze, blood in FTA
card and penile swab of the above accused persons and handed
them over to the IO. Similarly, PW9 Dr.Ashish Jain had
deposed that on 02.12.2010, he had examined accused Usman
@ Kale and after his examination, preserved underwear blood
in EDTA Vial, FTA card, pubic hair, penile swab, control swab.
PW10 Dr.Hari Prasad had deposed that on 02.12.2010, he had
examined accused Shamshad @ Khutkan and after his
examination, 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 the
exhibits collected from the vehicle also corroborated the
testimony 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 Max
pick-up vehicle no.HR 27J 0964 was produced in FSL, Rohini
as the same was involved in a crime committed on the
intervening night of 23/24.11.2010. A team including him was

Crl.A. 93/2015 Page 42 of 48
organized for inspection. The said vehicle was examined on
02.12.2010 and 03.12.2010. A cutting having some suspected
stains and 11 strands of hair recovered from the front seat of the
vehicle were handed over to the IO. He had proved the original
crime report vide Ex.PW7/A. PW7 also deposed that on
26.11.2010, three sealed parcels were received; on 03.12.2010,
ten sealed parcels were received; on 09.12.2010, 14 sealed
parcels were received and on 13.12.2010, five sealed parcels
were received in the office having exhibits. All the exhibits
were 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 was
isolated 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 examination
of the exhibits, the witness (PW7) gave the opinion that DNA
profile of source exhibit i.e. FTA card/blood samples of all the
appellants were responsible for the biological stains i.e. semen
on 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 B (underwear of victim). It
was also opined that the DNA profile of exhibits 1K-1, 1K-2
(blood of the victim) was matched with the DNA of blood on
exhibit 34 B (pant of accused Usman @ Kale). PW7 proved his
detailed report of analysis as Ex.PW7/C dated 18.01.2011.

Crl.A. 93/2015 Page 43 of 48

45. As per the opinion and report Ex.PW7/C of the
DNA expert, the incident of commission of rape upon the
prosecutrix by the appellants has also been duly proved. As per
the DNA report, the FTA cards/blood samples of the appellants
matched with the semen on the DNA profile of jeans pant and
underwear of prosecutrix. It clearly proves the case of the
prosecution that on the day of incident, appellants forcibly
kidnapped the prosecutrix and rape was committed upon her by
the appellants.

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

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

Crl.A. 93/2015 Page 44 of 48
were seized by the IO and the same were sent to FSL through
HC Dheer Singh (PW31). As per FSL report Ex.PW7/A to
Ex.PW7/C also, 12 articles belonging to the prosecutrix were
examined in the laboratory. Though, there is slight change in
the number of articles seized by the doctor, and their seizure by
the IO, but it does not in any way affect the case of the
prosecution.

48. Argument advanced by the counsel for the
appellant Usman is that no blood of the prsoecutrix was taken
from the vehicle. This submission is of no relevance, and it
does not weaken the case of the prosecution. There is nothing
to sugest that the prosecutrix suffered such heavy bleeding that
the blood would have fallen in, and left a stain in the vehicle.
The aspect of sending of blood sample of the prosecutrix to the
FSL has already been dealt with by us above. Next limb of
argument advanced is that there was no blood on the pant of
accused Usman, and that there were dirty stains on it, which
cannot lead to the inference that the blood on the pant matched
with the blood of the prosecutrix.

49. So far as the above contention on behalf of the
accused Usman is concerned, this part of DNA report is an
additional circumstance, apart from the other evidence available
on record against him. Even if the said argument is accepted, it
is of no consequence and cannot affect the case of prosecution
in view of the fact that the prosecutrix has duly identified

Crl.A. 93/2015 Page 45 of 48
accused Usman too, apart from other accused persons, as the
culprit who had kidnapped her and committed gang rape upon
her on the fateful night. Argument that the pant of the accused
was not having blood, is just on the basis of inference drawn
that the pant was having dirty stains and not blood. Pertinently,
the question of the pant of Usman having blood was not put to
the FSL expert.

50. Medical examination of the prosecutrix was
conducted by PW12-Dr.Kavita Soni. PW12 had deposed that
on 24.11.2010, she was working as Senior Resident in
Safdarjung Hospital. On that day, the prosecutrix was brought
to the hospital along with her sister and police officials. There
was alleged history of sexual assault at about 2.00 a.m. on
24.11.2010, near Dhaula Kuan. PW12 had examined the
patient. The patient was unmarried female with no history of
previous sexual contact. On her examination, PW12 found that
the hymen of the prosecutrix was freshly ruptured and there was
slight bruising over posterior vaginal wall. PW12 had proved
the MLC of the prosecutrix as Ex.PW12/A and OPD card as
Ex.PW12/B.

51. Testimony of doctor (PW12) who had medically
examined the prosecutrix, MLC Ex.PW12/A and OPD card
Ex.PW12/B of the prosecutrix further corroborates the
testimony of the prosecutrix that she was sexually assaulted on
the day of incident. In the report of the doctor, it is clearly

Crl.A. 93/2015 Page 46 of 48
mentioned that the prosecutrix was brought to the hospital with
the history of sexual assault and as per report, her hymen was
freshly ruptured having bruise over her posterior vaginal wall.

52. In our considered view, the testimony of the
prosecutrix is natural, reliable, credible and trustworthy, free
from any kind of glitches. She in simple language narrated the
incident at the time of her deposition before the trial court and
her testimony has duly been corroborated by PW2 and PW3.
The testimony of the prosecutrix itself is sufficient to base the
conviction of the appellants, but in the instant case, her
testimony has duly been corroborated by PW2 and PW3. The
trial Court found her evidence credible and trustworthy and we
find no reason to take a different view. From the above
mentioned testimony of the prosecutrix (PW1), her friend
(PW2) and PW3, it has been established beyond reasonable
doubt that all the appellants kidnapped the prosecutrix on the
fateful night of 23/24.11.2010, and then committed rape upon
her in the vehicle. All these witnesses were cross-examined at
length by the defence, but the defence has failed to put any dent
to their testimony. All the appellants were duly identified by
the prosecutrix (PW1) and her friend (PW2) as the persons who
had, firstly, kidnapped the prosecutrix in the vehicle in question
and then committed rape upon her in the said vehicle itself.

53. From the testimony of the prosecutrix, the
prosecution has successfully established that on the fateful night

Crl.A. 93/2015 Page 47 of 48
of 23/24.11.2010, all the appellants firstly kidnapped the
prosecutrix from near Sharma Automobiles, Moti Bagh, New
Delhi, took her in a pick-up van, rape was committed in the
moving vehicle and then all the appellants committed rape upon
the prosecutrix in the area of Mangolpuri. The prosecution has
been able to establish all the charges against the appellants. The
appellants have failed to make out any ground in support of the
present appeal and the same deserves dismissal.

54. As discussed above, the judgment and conviction
of the appellants is hereby upheld. Consequently, the present
appeal is dismissed.

P.S. TEJI, J

VIPIN SANGHI, J

JANUARY 30, 2018
dd

Crl.A. 93/2015 Page 48 of 48

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