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Mahender @ Ganja vs State on 16 April, 2018

$~2 to 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1025/2016
MAHENDER @ GANJA ….. Appellant
Through: Mr. Chetan Lokur, Advocate.

versus
STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State

+ CRL.A. 1138/2016
RAJU CHHAKA ….. Appellant
Through: Mr. Azhar Qayum, Advocate.

versus
STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State

+ CRL.A. 1139/2016
RAJU BHAJJE ….. Appellant
Through: Mr. Azhar Qayum, Advocate.

versus
STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State

+ CRL.A. 1140/2016
ARJUN ….. Appellant
Through: Mr. Azhar Qayum, Advocate.
versus
STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State

+ CRL.A. 1141/2016
MOHD. RAJA ….. Appellant

CRL.A. 1025/2016 connected matters Page 1 of 19
Through: Mr. Azhar Qayum, Advocate.

versus
STATE ….. Respondent
Through: Mr. Amit Chadha, APP for State

CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT
% 16.04 .2018
Introduction

1. A shocking incident of gang rape of a Danish tourist took place in the
vicinity of the New Delhi Railway Station in the evening hours of 14 th
January 2014. The 51 year old victim of the brutal assault survived the
ordeal. She later returned from Denmark to depose at the trial and identify
the perpetrators. Her testimony was fortunately corroborated by the forensic
evidence.

2. By a judgment dated 6th June 2016, in Sessions Case No.35/2014 arising
out of FIR No.17/2014 registered at Police Station („PS‟) Paharganj, the
learned Additional Sessions Judge, Special Fast Track Court-2 (Central)
(hereafter the trial Court), the accused i.e. Mahender @ Ganja (A-1;
appellant in Crl.A.1025/2016), Mohd. Raja (A-2; appellant in
Crl.A.1141/2016), Raju Bhajje @ Raju Bhagat (A-3; appellant in
Crl.A.1139/2016), Arjun (A-4; appellant in Crl.A.1140/216), and Raju
Chhaka (A-5; appellant in Crl.A.1138/2016), for the offences punishable
under Sections 376D, 366/34, 342/34, 395, and 506 Part-II/34 Indian Penal
Code („IPC‟). Additionally, Arjun (A-4) was held guilty of offences under

CRL.A. 1025/2016 connected matters Page 2 of 19
Section 397 IPC and Arjun (A-4) and Mohd. Raja (A-5), were held guilty of
the offences punishable under Section 412 IPC.

3. These appeals, which challenge the above conviction, are also directed
against the order on sentence dated 10th June 2016 whereby each of the
Appellants were sentenced as under:

a. For the offence punishable under Section 376-D IPC, to
undergo Rigorous Imprisonment (RI) for life which shall mean
imprisonment for the remainder of convicts‟ natural life, in
addition to payment of fine of Rs.50,000/- each, and in default
to undergo Simple Imprisonment (SI) for 2 years.

b. For the offence punishable under Section 366/34 IPC, to
undergo imprisonment for 10 years, in addition to payment of
fine of Rs.5,000/- each, and in default thereof, to undergo SI for
2 years.

c. For the offence punishable under Section 342/34 IPC, to
undergo imprisonment for 1 year and pay a fine of Rs. l ,000/-
each, and in default thereof, to undergo SI for 3 months.

d. For the offence punishable under Section 395 IPC, to
undergo RI for 10 years, and pay a fine of Rs.20,000/- each,
and in default thereof, to undergo SI for 1 year.

e. For the offence punishable under Section 506 Part-II/34 IPC
to undergo imprisonment for 7 years, and pay a fine of
Rs.5,000/- each, in default thereof, to undergo SI for 1 year.

Further, for the offence punishable under Section 25 of Arms
Act, A-1 was sentenced to undergo RI for one year and pay a
fine of Rs.10,000/-, and in default thereof, to undergo SI for 3
months.

Further, for the offence punishable under Section 412 IPC, A-4
and A-5 were each sentenced to undergo RI for 10 years and

CRL.A. 1025/2016 connected matters Page 3 of 19
pay a fine of Rs.10,000/- each and in default thereof, to undergo
SI for 1 year.

Further, the for offence punishable under Section 397 IPC, A-4
was sentenced to undergo RI for 7 years, and pay a fine of
Rs.10,000/-, and in default thereof, to undergo SI for 1 year.

All the sentences were directed to run concurrently.

The charge

4. The charge against the Appellants is that on 14 th January 2014, at around
6 to 7 pm, A-1 to A-5 along with Shyam Lal @ Bhajni (A-6) (who expired
during the trial) along with three juveniles in conflict with the law („JCLs‟)
in furtherance of their common intention abducted the victim (PW-12),
wrongly confined her, robbed her of her belongings, threatened to kill her by
showing her a knife/dagger and committed gang rape on her.

Background

5. The victim (PW-12), is a Danish national who was visiting India as a
tourist. She arrived in India on 31st December 2013 and stayed at a hotel in
Paharganj, New Delhi. She visited Udaipur, Pushkar, Jaipur, Agra etc. After
she returned to Delhi on 13th January 2014, she stayed at the same hotel in
Paharganj.

6. On 14th January 2014, PW-12 left her hotel at 9.30 am and visited the
National Museum. In the evening, she decided to return to her hotel. Owing
to the rush on the roads, she decided to walk back to her hotel from State
Entry Road, one of the roads branching off from the outer circle of
Connaught Place. This road leads to one of the entrances to the New Delhi

CRL.A. 1025/2016 connected matters Page 4 of 19
Railway Station. She found no rush on that road and eventually came to a
dead end. She asked a young man nearby whether she could go that way to
which he responded in the affirmative and gave her directions.

7. PW-12 recollected later that she noticed a statue of a Hindu goddess near
the spot. She went on to state that eight persons who were hiding behind the
bushes emerged and caught hold of her. Even as she attempted to scream for
help, the assailants put a piece of cloth on her mouth to stifle her screams.
She remembered that some sniffing glue had been put on that piece of cloth.

8. PW-12 was carrying a black coloured cloth bag containing her mobile
phone, a music player, her glasses with a case, earphones, guide book,
money in a small purse and some cosmetics. In another small purse, she was
carrying her passport and approximately 750 Euros and Rs.3000/- Indian
currency. In another bag she was carrying her passport and money. The
assailants took away all her belongings except for her passsport, visa card
and black cloth bag. They assaulted her on her face and also other parts of
her body. One of the assailants brandished a very big knife, placed it on her
neck, and threatened to kill her if she shouted.

9. They then proceeded to rape her one after the other despite her pleas to
them to spare her. The assailants are also stated to have repeatedly hit the
victim during the course of the rape. PW-12 states that this continued for
about five hours after which the assailants gave her a pair of trousers which
she wore and returned to the hotel. Some Canadian tourists staying in the
same hotel helped PW-12 in calling the police. It transpired that she had to

CRL.A. 1025/2016 connected matters Page 5 of 19
get in touch with the Danish Embassy in Delhi. According to PW-12, it is
only after the arrival of the officials of the Danish Embassy that the police
took action.

Investigation

10. Since PW-12 was returning to Denmark the next morning, her statement
was recorded at 11:50 pm on 14th January 2014 itself. She gave a hand
written statement in English to the above effect giving her e-mail ID and her
address in Denmark. A rukka was drawn up on the basis of the statement
and then sent to the PS for registration of FIR No.17/2014 under Section
376D and 396 IPC at 12:10 am on 15th January 2014. PW-12 declined to
undergo a medical examination immediately. She was medically examined
in Denmark as soon as she returned there. Those reports were subsequently
sent to the Investigating Officer („IO‟) of this case.

11. Sub-Inspector (SI) Pushpa (PW-24) reached the hotel where PW-12 was
staying on 14th January 2014 at some point between 10:30 and 11:00 pm on
the directions of senior officers. She found a team of police officers already
present there. PW-12 handed over to PW-24 her written complaint. PW-24
noticed injuries on the face and another parts of body of the PW-12. Her
clothes were muddied. Despite the repeated requests of PW-24, PW-12
declined to undergo medical examination. PW-12 produced before PW-24 a
groundnut coloured handkerchief which according to her was used by one of
the accused for glue sniffing. The handkerchief was seized. PW-12 also
handed over PW-24 a white coloured top which was in a torn and dirty
condition, a multi-coloured long top which was also in a torn and dirty

CRL.A. 1025/2016 connected matters Page 6 of 19
condition, a black coloured sweater on which „Made in Bangladesh‟ was
written, and black coloured inner wear and lower wear. These clothes were
put into a parcel and then sealed by PW-24. According to PW-24, on
intimation given to Danish Embassy, two officials from the Embassy also
arrived and in their presence, a request was again made for medical
examination, but PW-12 refused.

12. PW-24 then proceeded to the spot along with SI Anand Singh (PW-19).
There they found a small room and when they banged on the door of the
room, one Shivji Singh (PW-2) opened the door and he introduced himself
as the gardener of the Railway Officers‟ Club. He appeared perplexed but
joined the investigation. PW-2 is supposed to have narrated to the police the
entire incident which he had purportedly seen. According to PW-24, with
the assistance of PW-2, she prepared the rough site plan (Ex. PW-24/B).

13. In his statement under Section 161 Cr PC recorded in the early hours of
the 15th January 2014, PW-2 claimed to have known the accused for many
years as they were all from the same area as him. He stated that at 4:30 pm
on 14th January 2014, he saw A-1 to A-6 along with the three JCLs sniffing
glue. He left to buy vegetables and returned from the market at around 6:00
pm. At around 6:30 pm, he heard the screams of a lady in a foreign tongue
which he did not understand. He came out of his room and stood on a small
mound of mud to see what was going on. He saw that nine persons (the six
accused and the three JCLs) had surrounded a female foreigner after
stripping her bare of her clothes. They had laid her on the ground. According
to PW-2 he saw A-1 in the act of raping the victim who was desperately

CRL.A. 1025/2016 connected matters Page 7 of 19
trying to escape but was surrounded on all sides by the remaining accused.
PW-2 stated that A-4, who was holding a knife, noticed him witnessing the
incident. A-4 purportedly gestured with the knife to PW-2 to leave
immediately.

14. According to PW-2, on the previous night, i.e. 13th January 2014, there
had been a programme for Lohri and he had stayed up all night and was
consequently tired. He got frightened when A-4 threatened him with the
knife. He was aware of the background of the accused persons who used to
beat up and humiliate victims. He was also concerned about his own job.
PW-2, therefore, decided to go back to his room and fell asleep.

15. The crime team was called to the spot and photographs were taken. Six
used condoms were found at the spot and were kept in a separate container.
A pack of unused condoms and one empty cover were also recovered. Four
cigarette butts, leaves on which white liquid was found, one stocking of light
yellow colour, a stocking of black colour, one grey coloured full sleeved
shirt having mud thereon, a black Rexine belt, T-shirt with attached cap, an
underwear of light green colour and one multi colour piece of cloth having
lace, and one light yellow coloured handkerchief having some white liquid
were all also collected, placed into parcels and sealed.

Arrests and disclosures

16. The investigation was subsequently taken over by SI Anand Singh
(PW-19). A police team was formed for search and arrest of the accused
persons. At 7:15 pm on 15th January 2014, based on information received by
PW-19 from a secret informer, A-1 and A-2 were arrested and some stolen

CRL.A. 1025/2016 connected matters Page 8 of 19
goods were recovered. They gave disclosure statements and took the police
to the place of occurrence. They were taken to LHMC SSK Hospital for
medical examination.

17. On 17th January 2014, A-2 was taken to RML Hospital for his blood and
semen samples. On that day itself, again based on information received from
a secret informer, the police arrested A-5 who gave a disclosure statement.
The stolen mobile phone was recovered from him. A-4 was arrested on that
day and he and A-5 were medically examined. Inspector S.D. Meena
arrested A-3 on 17th January 2014.

18. On 18th January 2014, PW-19 received a letter from Copenhagen
through CBI of the medical examination of PW-12 running into 90 pages.
On 20th January 2014, the investigation of the case was taken over by
Inspector Raj Kumar (PW-26), the SHO of PS Paharganj. On
22nd January 2014, PW-19 accompanied PW-26 to the spot with the official
draftsman. A scaled site plan (Ex.PW-8/A) was prepared on 27th January
2014.

19. On 27th January 2014, the statement of PW-2 under Section 164 CrPC
was recorded. He stuck basically to the version given by him to the police in
the first instance in the early hours of 15th January 2014. The TIP of the
knife recovered was got conducted on 20 th January 2014 and identified by
PW-2.

20. On 29th January 2014, A-6 was arrested. He too gave a disclosure

CRL.A. 1025/2016 connected matters Page 9 of 19
statement and some Euros and SIM card of the victim was recovered from
him. PW-26 collected the DNA Analysis Report (Ex. PW25/A) from the
Forensic Science Laboratory („FSL‟).

The trial

21. At the conclusion of the investigation, a charge sheet was filed and
charges were framed by the trial Court against the accused on
25th November 2014 in the above terms.

22. Twenty-eight witnesses were examined for the prosecution. In their
respective statements under Section 313 Cr PC, each of the accused denied
the circumstances against him and claimed innocence. Each of them stated
that he had been falsely implicated in this case. However, no defence
evidence was led.

Impugned judgment of the trial Court

23. In the impugned judgment, the trial Court came to the following
conclusions:

(i) The testimony of PW-2 was truthful and reliable. He knew all the
accused since their childhood. He stood firm during cross-
examination. No question was put to him in his cross-examination
about his witnessing the incident after climbing on the heap of mud at
a construction site just immediately behind the scene of crime.

(ii) PW-2, who was a natural eye witness, identified each of the accused
persons during the trial in the Court.

CRL.A. 1025/2016 connected matters Page 10 of 19

(iii) The recoveries of the stolen articles from the accused were also
proved by the prosecution

(iv) The DNA report proved by Mr. D.S. Paliwal (PW-25), an expert from
the FSL, was a clinching piece of evidence. The DNA profile
generated connected the accused persons with the crime. There was
similarity in the report sent by the authorities at Copenhagen after
medical examination of PW-12 and the DNA profiles as generated by
the FSL here.

(v) There was no merit in the contention that the prosecution had
manipulated the evidence under media pressure.

24. It was accordingly held that the prosecution had been able to prove the
case against the accused persons beyond all reasonable doubt. The trial
Court then proceeded to convict the Appellants and sentence them in the
manner already indicated hereinbefore.

25. This Court has heard the submissions of Mr. Azhar Qayum, the learned
counsel for A-2 to A-5, and Mr. Chetan Lokur, the learned counsel
appearing for A-1. The Court has also heard the submissions of Mr. Amit
Chadha, the learned APP for the State.

Analysis of the evidence of PW-12

26. The Court would first like to discuss the evidence of the victim herself.
The circumstances under which she gave the initial statement to the police
describing what had happened to her on the evening of 14 th January 2014

CRL.A. 1025/2016 connected matters Page 11 of 19
basically remained unaltered even during her deposition during trial. The
learned Counsel for the Appellants did point out that her identification of the
accused in the Court gave rise to doubts whether all of them were in fact
involved in the commission of the crime. In particular, reference was made
to the following portion of her deposition:

“I might be able to identify the offenders, if shown to me.
However, I am not certain if I will be able to identify them or
not as it has been 1 ½ years since the incident.

At this stage, on seeing the accused persons present in the court
today, the witness has pointed out towards accused Raju S/o
Om Prakash, accused Arjun S/o Hari Om, accused Raju S/o
Bhagat Singh and accused Mahender @ Ganja and states that
she is certain that the above named accused committed rape
upon her on the aforesaid date and in the above stated manner.
She further states that she is not certain if the other two accused
present in the court today [i.e. accused Mohd. Raja and Shyam
Lal @ Bhajni] were also the offenders or not.

At this stage, witness again states that she is not 100% sure if
the accused wearing black T-shirt and having beard [i.e.
accused Raju S/o Bhagat Singh] was also one of the offenders
or not due to lapse of time.”

27. Later in her cross examination by the counsel for the accused, PW-12
stated:

“I am not certain but accused in black shirt [witness has pointed
out towards accused Raju S/o Om Prakash] present in the court
today, is the person who had told me the direction on that day. I
cannot say after how much time they showed me the knife after
I asked about the direction to my hotel.”

28. It was submitted by learned counsel for the Appellants that that while
PW-12 was uncertain about the involvement of Mohd. Raja (A-2), Shyam

CRL.A. 1025/2016 connected matters Page 12 of 19
Lal @ Bhajani (A-6) and Raju Bhajje @ Raju Bhagat (A-3), she has named
only three of the accused, i.e. Mahender @ Ganja (A-2), Arjun (A-4) and
Raju Chhaka (A-5). Even as regards A-5, it is sought to be pointed out that
he probably only gave her directions and nothing more.

29. The above submission overlooks the fact that PW-12 stood firm despite
extensive cross-examination by counsel for the accused as to the essential
details of her deposition. She was specifically asked about A-5 who was
having light hair at the time of the incident and was referred to by her as a
European. She pointed to A-5 in Court and stated “I am also confused as this
accused has brown eyes and the person referred as „European‟ has lighter
eyes”.

30. It must be remembered that PW-12 came back to India nearly 18 months
after the incident and was deposing in Court on 1 st July 2015. Some leeway
has to be given for this lapse of time and the further fact that she had
suffered a traumatic experience. Her uncertainty has to be understood in this
context. She was in a foreign land encountering perfect strangers. The time
of rape was in the evening hours of 14 th January 2014 when sunset occurred
early. Therefore, her uncertainty about the exact identification of some of
the accused was understandable.

31. In this context the following observations of the Supreme Court, in the
context of the testimony of a victim of sexual assault, in State of Punjab v.
Gurmit Singh AIR 1996 SC 1393 are relevant::

“We must remember that a rapist not only violates the victim’s

CRL.A. 1025/2016 connected matters Page 13 of 19
privacy and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape is not
merely a physical assault – it is often destructive of the whole
personality of the victim. A murderer destroys the physical body of
his victim; a rapist degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases with
utmost sensitivity. The Courts should examine the broader
probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult to place
implicit reliance on her testimony, it may look for evidence which
may lend assurance to her testimony, short of corroboration required
in the case of an accomplice. The testimony of the prosecutrix must
be appreciated in the background of the entire case and the trial court
must be alive to its responsibility and be sensitive while dealing with
cases involving sexual molestations.”

32. Again in Om Prakash v. State of U.P. AIR 2006 SC 2214 the Supreme
Court observed:

“11. It is settled law that the victim of sexual assault is not treated as
accomplice and as such, her evidence does not require corroboration
from any other evidence including the evidence of a doctor. In a given
case even if the doctor who examined the victim does not find sign of
rape, it is no ground to disbelieve the sole testimony of the
prosecutrix. In normal course a victim of sexual assault does not like
to disclose such offence even before her family members much less
before public or before the police. The Indian women has tendency to
conceal such offence because it involves her prestige as well as
prestige of her family. Only in few cases, the victim girl or the family
members has courage to go before the police station and lodge a case.
In the instant case the suggestion given on behalf of the defence that
the victim has falsely implicated the accused does not appeal to
reasoning. There was no apparent reason for a married woman to

CRL.A. 1025/2016 connected matters Page 14 of 19
falsely implicate the accused after staking her own prestige and
honour.

…..

13. 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……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 own to be
infirm and not trustworthy. If the totality of the circumstances
appearing on the record of the case discloses 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.”

The forensic evidence

33. In the present case, the presence of the accused at the spot has been
corroborated by the DNA evidence that has been proved in this case through
PW-25, the FSL expert. In particular, the Court would like to refer to the
DNA Profile analysis which was explained by him as under:

“1. DNA Profile from the source of exhibit ’18e’ (Blood sample
of Mahender @Ganja) is matching with DNA Profile from the
source of exhibit ‘A-2b’ (multi-colour top), exhibit „A-3d‟
(condom), exhibit ‘A-3e’ (condom).

2. DNA Profile from the source of exhibit ’18e’ (Blood sample
of Mahender @Ganja) is also matching in mixed DNA Profile
(DNA Profile from more than one person) from the source of
exhibit ‘A-2a’ (white colour top), ‘A-2c’ (Sweater) exhibit ’29’
(Blanket).

CRL.A. 1025/2016 connected matters Page 15 of 19

3. DNA Profile from the source of exhibit ’31a’ ’52’ (Blood
sample of Mohd. Chand) is matching with DNA Profile from
the source of exhibit „A-3b’ (Condom),

4. DNA Profile from source of exhibit ’31a’ ’52’ (Blood
sample of Mohd. Chand) is also matching in mixed DNA
Profile (DNA Profile from more than one person) from the
source of exhibit ‘A-2a’ (while colour top), ‘A-2c’ (Sweater),
exhibit ’29’ (Blanket),

5. DNA Profile from the source of exhibit ’20d’, exhibit ’32’
(Blood sample of Mohd. Raja), exhibit ’22f‟ (Blood sample of
Raju Bhajje @ Raju Bhagat), exhibit ’24f‟ (Blood sample of
Raju Chhakka), exhibit ’26e’ (Blood sample of Arjun), exhibit
’28d’, exhibit ’28e’ exhibit ’47’ (Blood sample of Uvedullah),
exhibit ’63’ (Blood sample of Shyam Lal @ Bhajani) exhibit
’65’ (Blood sample of Sadakat @Javed @Chikna) is matching
in mixed DNA Profile (DNA Profile from more than one
person) from the source of exhibit ‘A-2a’ (White colour top), ‘A-
2c’ (Sweater) exhibit ’29’ (Blanket).” (emphasis in original)

34. It was repeatedly urged by learned counsel for the Appellants that with
the crime being a sensational one which had attracted considerable media
attention, it would have been easy for the police to manipulate even the
DNA evidence. It was submitted that it was for the prosecution to explain
how the mixed samples containing DNA profiles of both the accused and the
victim could possibly be found on the floral top when what was described
was a gang rape. It was further submitted that how the blanket which was
purportedly laid on the ground and on which the victim lay while she was
being raped, was recovered has not been explained.

35. As far as the clothes of the victim being handed over by her to the police
at the earliest possible opportunity, the Court has already referred to the

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evidence of PW-24 which again is clear and convincing and has not been
shaken in cross-examination. No questions have been put to PW-25 about
any tampering of the samples sent to the FSL for examination. There is no
suggestion that any of these samples could have been manipulated or
replaced.

36. In the considered view of the Court, the convincing evidence of PW-12
has been fully corroborated by the forensic evidence in the form of the DNA
Profile analysis. This by itself conclusively proves not only the presence of
the accused at the scene of crime but their involvement in the commission of
gang rape on the victim.

Reliability of the eye-witness account

37. The Court is conscious that the trial Court has placed considerable
reliance on the evidence of PW-2 who was put forth by the prosecution as an
eye-witness to the entire occurrence. However, there is one serious lapse
committed by the IO as far as this witness is concerned, which cautions the
Court from straightaway accepting his testimony as a natural witness to the
occurrence.

38. According to PW-2, he was standing on a heap of mud at a construction
site just behind the scene of crime in order to view what was happening.
Although the rough site plan drawn up by PW-24 indicates where this
construction site was, it does not indicate the exact spot from where PW-2 is
supposed to have witnessed this occurrence. The rough site plan does
indicate a room but fails to mention that the said room was the room

CRL.A. 1025/2016 connected matters Page 17 of 19
occupied by PW-2. Even the APP did not show PW-2 the rough site plan
during his deposition in Court to confirm whether the room shown therein
was his room and where he was standing at the construction site shown in
the rough site plan.

39. The Court is unable to understand why the IO would not undertake this
basic exercise of showing in the rough site plan, at the very first instance,
the location of the eye witness, i.e. the precise spot from where the eye
witness viewed the occurrence. This assumes even greater significance
because it is rare that there would be an eye witness to an incident of rape
other than the victim. It must also be remembered that the rape is stated to
have happened for a period of five hours from around 5:30 pm or 6:00 pm
on 14th January 2014. This being winter and a time of early sunset, the IOs
should have satisfied themselves that it would have been possible for PW-2
to actually witness the incident clearly from that distance and at the hour of
sunset. This basic exercise of re-constructing the scene of crime has not been
undertaken by the IO.

40. Another aspect of this case that the Court considers imperative to
highlight is the carelessness of the IOs undertaking the investigation in the
present case. The scaled site plan was prepared on 27th January 2014 after
the statement of PW-2 under Section 161 Cr PC was recorded. Mysteriously,
the under-construction site and the room shown in the rough site plan have
disappeared in the scaled site plan. In sum, there was a mishandling of the
evidence of PW-2 by the IO. It is of course entirely another matter that the
counsel who appeared for the accused in the present case in the trial Court

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did not subject either the IO or even PW-2 to the kind of cross-examination
that would have been expected of a defence counsel.

41. The Court, therefore, is not prepared to accept the evidence of PW-2
as being of a natural witness who could have seen the occurrence. For the
same reason, the Court is of the view that the trial Court erred in giving
accolades to the IOs in the present case.

Conclusion

42. However even if the evidence of PW-2 is kept aside, in view of the un-
rebutted evidence of the victim herself, which has been corroborated by the
DNA Profile analysis, and with the recoveries from the accused having been
proved without any serious contradiction by the counsel for the accused, the
Court is satisfied that the ultimate conclusion of the trial Court regarding the
guilt of the Appellants for the offences with which they were charged is
correct.

43. No grounds have been made out for interference with the impugned
judgment and order on sentence of the trial Court. The appeals are
accordingly dismissed. The trial Court record be returned forthwith along
with a certified copy of this judgment.

S. MURALIDHAR, J.

I.S. MEHTA, J.

APRIL 16 2018/’anb’

CRL.A. 1025/2016 connected matters Page 19 of 19

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