Delhi High Court
Ramesh @ Pindari vs State on 8 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27th September 2018
Decided on: 8th October 2018
+ CRL.A. 1029/2017
RAMESH @ PINDARI ..... Appellant
Through: Ms. Inderjeet Sidhu, Advocate
(DHCLSC).
versus
STATE ..... Respondent
Through: Mr. Hirein Sharma, APP for State.
+ CRL.A. 1122/2017
ISLAM ..... Appellant
Through: Mr. Dhruv Gupta, Advocate
(DHCLSC).
versus
STATE ..... Respondent
Through: Mr. Hirein Sharma, APP for State.
+ CRL.A. 14/2018 & CRL.M.B. 15/2018
BEERU ..... Appellant
Through: Mr. Biswajit Kumar Patra, Advocate
(DHCLSC).
versus
STATE ..... Respondent
Through: Mr. Hirein Sharma, APP for State.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
Crl. A. Nos. 1029, 1122 of 2017 & 14 of 2018 Page 1 of 26
JUDGMENT
Dr. S. Muralidhar, J.:
1. The present appeals are directed against the judgement dated
18th September 2017 passed by the learned Additional Sessions Judge,
Special Fast Track Court-2 (Central) („the trial Court‟) in SC No.
27600/2016 arising out of FIR No.26/2015 convicting the three Appellants,
viz. Beeru („A-1‟ who has preferred Crl.A. 14/2018), Islam („A-2‟ who has
preferred Crl.A. 1122/2017), and Ramesh @ Pindari („A-3‟ who has
preferred Crl.A. 1029/2017), for the offences under Section 366/34 IPC,
Section 376D IPC, Section 376 (2) (l) IPC, and Section 506/34 IPC.
2. The appeals are also directed against the order on sentence dated
26th September 2017 whereby the Appellants were sentenced as under:
a. For offence punishable under Section 376-D IPC, to rigorous
imprisonment (RI) for life which shall mean imprisonment for
the remainder of convicts‟ natural life, in addition to payment
of fine of Rs.15,000/- each, to be paid to the victim and in
default whereof, to further undergo simple imprisonment (SI)
for 1 year.
b. For offence punishable under Section 366/34 IPC, to undergo
imprisonment for 10 years, in addition to payment of fine of
Rs.2,000/- each, in default whereof, to undergo SI for 1 year.
c. For offence punishable under Section 376 (2) (l) IPC to
undergo imprisonment for 7 years, in addition to payment of
fine of Rs.2,000/- each, in default whereof, to undergo SI for 1
year.
d. For offence punishable under Section 506 Part-I/34 IPC to
undergo imprisonment for 2 years, in addition to payment of
fine of Rs.2,000/- each, in default whereof, to undergo SI for 1
year.
3. The trial Court, noting that the three convicts were from economically
weak backgrounds, did not direct them to pay compensation to the victim. It
directed that a copy of its judgment be sent to the District Legal Services
Authority to consider the payment of suitable compensation to PW-1 in
terms of Section 357A (2) Cr PC.
Call made to the PCR
4. On 24th January 2015, Asif Ahmed (PW-4) was returning home by a bus
on Route No.181. The bus was going to the Nizamuddin Railway Station.
PW-4 alighted at Bhogal Bus Stand as he had to board another bus going
towards his house in Okhla. While he was waiting for that bus at the Bhogal
Bus Stand, at around 10:30-11 pm, he noticed a man dragging a blind lady
on the road leading to the Nizamuddin Railway Station. He states that the
lady was shouting "bachao bachao" and said, "Yeh mujhe pakad ke le jaa
raha hai". According to PW-4, he along with public persons who had
gathered at the spot helped the lady apprehend the man. That man was
identified in Court by PW-4 to be A-1. He further stated that the victim too
revealed her full name to them.
5. The PCR Form (Ex.PW-14/Q) records that a call was made to the police
at around 11:02 pm on 24th January 2015. The mobile number of the caller
ending „9200‟ was that of PW-4. What was reported to the police is noted as
"Ek ladka ladki ko lekar ja raha hai". The noting on the PCR form at
11:29 pm reads:
"______ naam ki ladki aged ____ years blind hai, Madhya
Pradesh ki rehni wali hai, SHO moka par hai, ladki ____ jo
train se Delhi aayi thi jise Dehradun jaana tha jo Bhogal stand
par uske do teen aadmi thei jo uska mouth band karke
jabardasti le jaane ki koshish kar rahe thei jo bhag gaye ha ek
ladke Beeru aged 36 years ko shak mein pakda hai."
Arrival of the police
6. The police official who first reached the spot was ASI Karan Singh
(PW-8) attached to PS Hazrat Nizamuddin. His PCR van was positioned
near Rajdoot Hotel at 11:08 pm when he received the above information.
Along with Ct. Pawan Sehrawat (PW-16), PW-8 reached near the Bhogal
Bus Stand where public persons were found gathered. One person, viz.
PW-4, met him there and informed PW-8 that he was the person who had
given information to the PCR. The boy who was taking away the girl had
been overpowered and his name was disclosed as A-1.
7. Meanwhile, SI Mahender Kumar (PW-5) and the SHO came to the spot.
One Lady Ct. Rekha was also called there and PW-1 was entrusted to her.
A-1 was handed over to the IO, viz. PW-5. For some reason, PW-8 did not
record the statement of PW-4 at the spot.
Medical examination of PW-1
8. It is not clear what happened immediately thereafter because the next
relevant document, i.e. the Medico Legal certificate („MLC‟) of PW-1
(Ex.PW-9/A) shows that she was brought to the All India Institute of
Medical Sciences („AIIMS‟) at 2:13 am on 25th January 2015, nearly three
hours after she was entrusted to the Lady Ct. Rekha. This delay in sending
her for a medical examination is not explained.
9. The MLC noted that PW-1 was examined by Dr. Prashasti Srivastava
(PW-9). The MLC further noted:
"According to the victim, she was taken by 3 male, who took
her to some unknown place and sexually assaulted her on
24/1/15
- There is also H/O physical assault."
10. As regards the menstrual cycle, it was noted that the last cycle was three
months ago. This indicated that, as on date, PW-1 was pregnant for at least
three months. The other observations on the MLC were as under:
"- no signs of injury
- Sphincter intact
- Hymen old tear"
11. The right thumb impression („RTI‟) of PW-1 was taken below the
endorsement which read: "I am willing for medical examination & sample
collection". PW-9 also took the following samples from PW-1 at the time of
medical examination for the purposes of checking whether any of the said
samples had any sperm on them:
"1. Vaginal swab
2. Vulval swab
3. Anal swab
4. Oral swab
5. Vaginal smear
6. Hair combing
7. Hair strands
8. Nail scrapping & clipping
9. Undergarments"
Counsellor's report
12. What happened with PW-1 after the medical examination till her
counselling at around 9:30 am on 25th January 2015 is also not very clear. A
counselling report (Ex.PW-14/A) was prepared by the woman counsellor
(not examined) at 10:30 am wherein, in the column entitled „Need for
medical assistance‟, it has been noted that PW-1 was in need of "psychiatric
assistance". The names of the accused were already given. It was noted that
the accused were not known to the victim.
13. The statement given by PW-1 to the counsellor was recorded in Hindi.
PW-1 stated that she was visually challenged; that in order to give the Class
XII examinations, she was going to a blind school located at Gangaji Road
in Dehradun; that she had come by the Mahakaushal Express at the
Nizamuddin Railway Station on 24th January 2015; that she was trying to
find out about which train might take her onwards to Dehradun when three
persons came to her and offered her food; that those three persons then took
her to a secluded place and raped her; and that they raped her again after
taking her to the bus stand. She further stated that when she raised an alarm,
public persons came there and the police was called.
The statement of PW-1 to the police
14. PW-1 gave a statement to the police under Section 161 Cr PC
(Ex.PW-5/C) on 25th January 2015 at PS Hazrat Nizamuddin. It is pertinent
to note that the recording of the statement purportedly commenced at
9:30 am and was concluded at 9:35 am, i.e. the recording of the statement of
the victim lasted approximately five minutes. In her statement, the victim
informed the police that both her parents had died and that she was totally
blind. She further stated that she was studying in Class XII in a blind school
in Dehradun. She further claimed that she had gone to her village in Madhya
Pradesh to spend some time at home and thereafter, on 23 rd January 2015
she set out alone to return to Dehradun by boarding the Mahakaushal
Express. She stated that she arrived in Delhi at the Nizamuddin Railway
Station on 24th January 2015 and was making enquiries as to which train
would take her to Dehradun when three men came to her and told her that
they would take her for a meal.
15. PW-1 claimed that on that pretext, they took her to a secluded spot and
removed her salwar. She then claimed that one of them said that A-2 should
rape her first and when she protested, A-2 asked A-1 to shut her mouth. She
further stated that A-1 asked A-3 to hold both her hands. PW-1 claimed that
thereafter they, one after the other, did "galat kaam" with her and also
threatened to kill her when she started shouting. According to her, they were
going to take her to the train heading to Dehradun when she heard the sound
of traffic. PW-1 stated that she screamed again and someone from the crowd
asked her for her name. With his help, one of the three persons was caught.
Thereafter, the police was called.
Investigation and arrests
16. The rukka identified PW-4 as the caller and also noted his mobile
number. The investigation was entrusted to Inspector Indu Rani (PW-14)
who was given a copy of the FIR and rukka as well as the report of the
counsellor. PW-14 interrogated A-1 and recorded his disclosure statement
(Ex.PW-14/B). Pursuant to said disclosure, according to PW-14, A-1 "had
also pointed out the place of the incident, vide pointing out memo
(Ex.PW-14/C) bearing my signature at point A". A-1 was then arrested
under (Ex.PW-14/D) which again bore her signature at point „A‟. PW-14
stated that PW-1 had also identified A-1 at that time. A personal search was
undertaken of A-1 and the personal search memo prepared (Ex.PW-14/E).
17. At this stage, it should be noted that the arrest memo of A-1
(Ex.PW-14/D) shows the time of arrest to be 1 pm on 25th January 2015. In
other words, although A-1 was supposedly apprehended at the spot at
around 11:30 pm, his arrest is shown to have been made more than 12 hours
later at 1 pm on the following day at the PS itself. No reasonable explanation
is provided by the prosecution for this delay except to say that there was
some confusion regarding jurisdiction of the PSs.
18. This, of course, is not very convincing since the PCR van which reached
the spot was from PS Hazrat Nizamuddin and the arrest memo was also
prepared by police officials attached to the same PS. There are only two
attesting witnesses to the arrest memo, Ct. Amardeep (not examined) and
PW-1. The pointing out memo (Ex.PW-14/C) also bears the attestation of
the same two persons but, unfortunately, there is no site plan to indicate
where the place of occurrence was. It only shows that this was near the
Barapullah nala without indicating the exact place and its relative distance
from the railway station.
19. According to PW-14, after obtaining his police remand, A-1 was
interrogated for about two days but the co-accused could not be traced out.
PW-14, therefore, obtained three further days of police remand and during
this period A-1 pointed out A-2 and A-3. The arrest of A-2, as per the arrest
memo (Ex.PW-6/C), was made at 9:35 pm on 27th January 2015 at the Neela
Gumbad. The arrest memo pertinent to A-3 also shows the time of arrest as
9:30 pm on the same date and at the same place. Apart from PW-1, two
other police officers are shown to have attested the two arrest memos. Their
disclosure statements were also recorded and they too are stated to have
pointed out to the place of the incident which again was the very same spot
which was already pointed out two days earlier by A-1.
Medical examination of the Appellants
20. The MLC of A-1 (Ex.PW-11/A) shows that he was taken for medical
examination to Vardhman Mahavir Medical College and Safdarjung
Hospital at 12:25 pm on 27th January 2015. Once again, no satisfactory
explanation is forthcoming as to why A-1, who was apprehended at
11:30 pm on 24th January 2015, was taken for medical examination only at
12:25 pm on 27th January 2015, roughly three days later.
21. After being examined by Dr. Ayush Malhotra (PW-11) at 12:25 pm, A-1
was then examined by Dr. Mukesh Bansal (PW-12) at 2:10 pm who, in his
report (Ex.PW-12/A) noted the marks of identification on the body of A-1
and opined that there was nothing to suggest that A-1 was not capable of
performing sexual intercourse. There was no smegma present at corona
glandis. There was no sign of any local injury or venereal disease. It was
further noted that no specimen was collected at that stage as the blood
sample of A-1 had already been collected at the casualty ward.
22. As for A-2 and A-3, they were both taken to the aforementioned same
hospital on 28th January 2015 and their MLCs were prepared at 11:25 am
and 11:27 am respectively. Thereafter, A-2 was examined by PW-12 at 1 pm
on the same date and it was opined in the report (Ex.PW-14/H) that there
was nothing to suggest that A-2 was not capable of performing sexual
intercourse. The remaining observations in the report are also similar to that
made in the aforementioned report pertinent to A-1.
23. PW-12 collected the blood on gauze and the underwear along with
langot of A-2. A-3 was examined by the same doctor (PW-12) at 1:30 pm
and the observations made in the report (Ex.PW-14/I) are almost identical to
that made qua A-2. The only specimen collected was blood on gauze.
The statement of PW-1 before the MM
24. PW-14 arranged to have the statement of PW-1 recorded before the
learned Metropolitan Magistrate („MM‟) (Ex.PW-3/A) on 27th January 2015.
This statement is more or less consistent with the hereinbefore discussed
statement made by her to the police at the first instance. She speaks of each
of the accused referring to each other by name and thereafter, taking it in
turns to repeatedly rape her. What was added here was that after they took
PW-1 to the bus stand, she quickly wore her clothes.
25. The age determination of the PW-1 could not be undertaken as she was
pregnant. PW-1 delivered a baby subsequently and thereafter, her age was
determined as between 20-22 years.
Forensic report
26. The charge sheet was filed on 24th February 2015. However, at that stage
the FSL report dated 29th June 2015(Ex.PW-14/P) had not been received
from the Biology Division, FSL. That report stated that blood was detected
on exhibits „10‟, „11‟, and „13‟ (blood samples on gauze of the three
Appellants). It is further stated that no blood was to be detected on exhibits
„9‟ (undergarment of PW-1), „12a‟ (langot of A-2), and „12b‟ (undergarment
of A-2). Further, semen could not be detected on the vaginal swab, vulval
swab, anal swab, vaginal smear, pubic hair, undergarment of PW-1 or the
langot and undergarment of A-2.
27. As regards exhibit „8‟, the report notes that it was "one plain paper
described as „nail scraping & clipping‟ kept unexamined as no biological
evidence was found on it". As far as the DNA examination is concerned, it
was noted as under:
"Since semen could not be detected on exhibit '1' (vagenal
swab), '2' (vulval swab), '3' (anal swab), '4' (oral swab), '5'
(vagenal smear), '7' (hair), '9' (cloth piece), '12a' (langot of
accused Islam) & 12b (knickers of accused Islam) therefore
DNA examination was not conducted."
Whether PW-1 a reliable witness
28. Charges were framed by the trial Court against the Appellants in the
manner indicated hereinbefore on 10th September 2015. The three accused
pleaded not guilty and claimed trial. In all, 16 witnesses were examined by
the prosecution. The trial commenced within 10 days of the framing of
charges on 19th September 2015 with PW-1 being examined first. Her entire
examination-in-chief on that date reads as under:
"I am blind since the age of 1½ years. I became blind after
suffering from chicken pox. My parents have already expired. I
do not have any siblings. I have studied till class XI in a blind
school in District Banda.
On 24.01.2015 I came to Delhi by train and got down at a
railway station, whose name I do not recollect now. Three
persons met me at the railway station and stated to me that they
will give me food. I accompanied them believing them to be
true. They took me towards bushes near the railway station.
They torn my clothes and all three of them raped me one by
one. When I tried to object and raise noise, they caught hold of
my hands and legs and pressed my mouth. They were
addressing each other by the names of Beeru, Islam and
Pindari. They also gave me beatings and I started bleeding from
my lips. They had taken me towards bushes at about 4.30 PM
and continued to rape me till about 2 AM.
Court Question: How can you tell the time of the incident?
Ans. 'Mujhe time pata chal jata hai.'
Court Question: Can you tell what is the time right now?
Ans. It is about 10 AM.
Court Observation: It is 10.30 AM by the court clock.
After committing rape, all the three assailants took me
somewhere and I could hear the sound of buses and horns in
that area. Then I cried for help. I caught hold of accused Beeru
while other two managed to escape. Public persons also
gathered there and I narrated the incident to them. Someone
called the police. Police took me to the PS and took me to
hospital.
Police made enquiries from me and recorded my statement on
which I put my thumb impressions.
My statement was also recorded before Ld. MM and I also put
my thumb impression on that statement.
I had identified accused Islam and Pindari in the police station
by hearing their voice on 27.01.2015 when police arrested
them.
When I was got medically examined by the police after this
incident, it was revealed that I was pregnant. I had also been
raped by someone in my village about 03 months before I came
to Delhi. I do not know who was that person, who raped me in
my village."
29. At that stage, further examination-in-chief was deferred as the APP
sought time to go through the record. It continued on 5th November 2015, on
which date, PW-1 deposed in the following manner:
"I had earlier identified the accused persons after hearing their
voice. I can still identify the accused persons, if I am made to
hear their voice.
At this stage, all the accused persons are asked if they are
willing to speak something so that their voice can be heard by
the witness I for the purpose of their identification. They state
by their separate statements that they have no objection if they
are made to speak something so that their voice can be heard by
the witness.
At this stage, accused Islam is asked to read something from a
Hindi newspaper, however, he states that he is illiterate. He has
spoken something about himself by giving brief introduction
except his name and parentage. On hearing his voice for about
1-2 minutes, the witness states that he is one of the persons,
who had committed rape upon her. However, she states that the
name of this person is Beeru.
At this stage, accused Beeru is asked to read something from a
Hindi newspaper, however, he states that he is illiterate. He has
spoken something about himself by giving brief introduction
except his name and parentage. On hearing his voice for about
1-2 minutes, the witness states that he is one of the persons,
who had committed rape upon her. However, she states that the
name of this person is Pindari.
At this stage, accused Ramesh @ Pindari is asked to read
something from a Hindi newspaper. He has read the newspaper
about 2-3 minutes. On hearing his voice for about 2-3 minutes,
the witness states that he is not the same person who had been
apprehended at the spot. She however, states that he is one of
the persons, who had committed rape upon her and states that
the name of this person is Islam.
I cannot tell the contents of conversation held between accused
Islam and Pindari at PS. I had also appended my thumb
impression on the documents prepared by the police qua arrest
of accused Islam and Pindari. I had also appended my thumb
impression on the documents prepared by the police qua arrest
of accused Beeru. I was also given counselling by the
Counsellor at the PS. I had also narrated the incident to the said
Counsellor and also to the doctor who medically examined me.
I had also disclosed the names of the assailants to the public
persons, gathered at the spot after hearing my shouting.
During the course of investigation, I had also given my
statement to the Ld.Magistrate at Tis Hazari Court. I had also
appended my thumb impression on the said statement."
30. PW-1 was cross-examined on 7th December 2015. She stated that she
had met the accused on the platform of the railway station after getting down
from the train. She could not tell "the name of the railway station or
platform number". PW-1 stated that she came to Delhi from Atara, District
Banda, Uttar Pradesh and that she "wanted to go to some blind school".
According to her, "I was not in complete senses on that day, hence I had told
the police that I came from Dehradun. I came to Delhi by Maha Kaushal
Express. I travelled in General Class and I did not have any reservation. I
was carrying my clothes in a poly bag. I had Rs.40/- with me".
31. As regards the accused, PW-1 stated in her cross-examination:
".....Accused persons did not serve me food on that day. Firstly,
accused persons take me along with them by holding my hands
but when I refused, they insisted me to accompany them for
food and took me with them by lifting me in their lap. I raised
alarm at the Railway Station as well as in the bushes. I cannot
say if any policeman was present at the Railway Station at that
time. No police official met me at the Railway Station. I cannot
tell how much time it took to reach the bushes from Railway
Station. When I was being carried by the accused persons, I
tried to escape from them. [Vol. But they did not leave me].
Accused persons snatched my polythene containing my clothes
in the bushes. [Vol. They had also torn my wearing clothes and
put on the clothes on me which I was carrying in my polythene
bag after committing the offence]. The said torn clothes were
lying in the bushes. The money which I was carrying was also
in the said polythene bag. I was carrying one set of clothes in
the said polythene bag. I had also stated the said fact to the
police. I could hear the sound of vehicles near the Railway
Track."
32. When confronted with her previous statement made to the police at the
first instance, PW-1 admitted that she had not stated to the police that she
could identify the persons involved by their voices. Significantly, she stated
that "at the time when I identified the accused persons at PS by their voice,
two police officials were also present and talking and I could hear their
voices".
33. According to PW-1, after the rape, the Appellants carried her "in their
laps" but when she raised an alarm and caught one of the offenders, she was
not on their laps. She claims to have "immediately narrated the incident to
the public persons gathered at the spot". PW-1 further deposed that her
statement was recorded by the police after they took her to the PS. She went
on to state that the "police did not accompany me to the place of incident
during investigation. The train reached the Delhi Railway Station at about
4.00 pm".
34. There are two things to be noted here. First is that in her examination-in-
chief, PW-1 claimed that the Appellants "had taken me towards bushes at
about 4.30 PM and continued to rape me till about 2 AM". This is not
consistent with the evidence on the record which shows that PW-1 was met
by police officials near the Bhogal Bus Stand at 11:30 pm on
24th January 2015. This discrepancy weakens PW-1‟s assertion that she
could tell the time of day even without looking at a watch.
35. Secondly, in light of PW-1‟s claim that she arrived on Mahakaushal
Express at 4 pm and was then taken to the bushes situated near the
Nizamuddin Railway Station at 4:30 pm, no attempt has been made to draw
up a site plan which would assist the trial Court in determining the exact
location of said bushes. Even the pointing out memo purportedly prepared at
the instance of A-1 indicating the spot where the alleged gang rape was
committed merely mentions a spot near the Barapullah nala with no scaled
site plan made available.
36. The net result of these lapses is that it is not clear whether it would be
feasible for a person to be taken, either by foot or by carrying them, from the
railway station to the bushes where the incident is supposed to have
occurred within half an hour. It is also not clear whether the victim could
have been raped till 2 am at that precise spot. As per her version deposed to
in the trial Court, the accused had her in their custody for nearly 10 hours
which is inconsistent with the other evidence on the record.
37. It appears that a number of claims made by the victim (PW-1) have not
been verified by PW-14. In her cross-examination, PW-14 states that
although she sought the CCTV footage at Nizamuddin Railway Station for
the relevant time, the camera covering the area where the incident is
supposed to have taken place was found to be not working. According to
PW-14, she had recorded the statement of a constable of the Railway Police
Force („RPF‟) for non-functioning of the CCTV camera but no such RPF
constable was examined. According to PW-14, "no public person found
present at H. Nizamuddin Railway Station revealing the incident".
38. Clearly, PW-14 did not consider it necessary to go to the village from
where PW-1 is supposed to have boarded the train all by herself on
23rd January 2015 or to check the exact time at which the Mahakaushal
Express arrived at Nizamuddin Railway Station on 24th January 2015.
39. Learned counsel for the Appellants has pointed out how, despite taking
PW-1 to Dehradun on 3-4 occasions, the police was unable to locate the
blind school which PW-1 was trying to reach. In other words, there is no
evidence at all that PW-1 was studying in Class XII at any blind school in
Dehradun or that she was going to appear in the Class XII examination as
claimed by her in the statements to the police and before the learned MM.
40. PW-1 also makes a significant addition in her deposition pertaining to
the clothes worn by her. It will be recalled that she did not mention about
her clothes being torn but only her salwar being removed by the accused,
both in her initial statement to the police and in her statement under
Section 164 Cr PC. What she has added in her statement under Section 164
Cr PC is that, after being brought to the bus stand, she quickly wore her
clothes. It is only in her examination-in-chief in the Court that for the first
time she spoke about her clothes being torn before three Appellants raped
her. In her cross-examination, PW-1 stated that she was carrying another set
of clothes in a plastic bag. This again was disclosed for the first time in the
trial Court. She further claimed that they had torn her wearing clothes and
"put on the clothes on me which I was carrying in my polythene bag after
committing the offence" and that "the said torn clothes were lying in the
bushes". No attempt was made by PW-14 to locate the torn clothes of PW-1.
Even during her medical examination, all her clothes were not seized. As
was seen earlier, only her undergarment was seized. This too contained
neither blood nor semen.
41. Therefore, the statement made by PW-1 that she left her village all by
herself on 23rd January 2015 and that she was studying in Class XII at a
blind school in Dehradun and was going there to write an examination have
not been corroborated by any evidence. These were verifiable facts and the
prosecution has been unable to explain why no investigation was carried out
on these aspects.
42. The central part of the deposition of PW-1 is about her being gang raped
by the three Appellants one after the other. It will be recalled that according
to her, the gang rape took place between 4:30 pm on 24th January 2015 and
2 am on 25th January 2015. Even if one were to take into account a margin
of error and assume that incident happened between 5 and 11 pm on
24th January 2015, it should be noted that PW-1 was entrusted to Lady Ct.
Rekha at 11:30 pm but was only medically examined almost three hours
later at 2:13 am on 25th January 2015. No external injuries, including
scratches, were found. Only the left side of her lip was swollen. It will also
be recalled that the white paper purportedly carrying the nail clippings was
found to contain no biological material which could be examined. Therefore,
there is nothing to indicate that PW-1 struggled with her assailants. The
hymen tear was an old one. The medical examination revealed that she was
already three months pregnant at the time of the incident. There was no
semen detected on any of the samples collected from her person. Likewise,
there was nothing in the medical or forensic evidence that could connect any
of the three accused with the crime.
43. It has already been noticed that no explanation has been offered by
PW-14 for the delay in conducting the medical examination of A-1 by more
than two days after his apprehension by the police. This kind of a lapse is
inexplicable and perhaps inexcusable. With there being no site plans despite
the pointing out memos by the Appellants, it is difficult to appreciate where
precisely the incident took place.
44. The identification of the accused by PW-1 is another aspect which the
trial Court seems to have overlooked. It is noticed that in her earlier
statement to the police that was recorded at 9:30 am the next morning, PW-1
somehow gave the names of all the three Appellants as according to her, she
knew their names because each of them was calling the other by his name.
She maintained this even in her statement under Section 164 Cr PC. Yet, as
already noticed, in her cross-examination, PW-1 disclosed that she had
identified the Appellants at the PS by their voice and that two police
officials were also present and talking and she could hear their voices as
well. Yet when she was asked to identify the Appellants in the Court
through their voices, she mistook one for the other. Her identification of
three Appellants was therefore doubtful.
45. This Court would at this stage like to refer to the legal position regarding
prosecutrix evidence in cases involving rape. It has been explained by the
Supreme Court in several decisions that if the statement of a victim is
otherwise truthful and reliable, the mere fact that her statement may not be
corroborated by the medical or forensic evidence does not, by itself,
discredit her version. In other words, as long as the victim puts across a
believable and reliable version, the Court can still proceed to convict.
However, the Court has to be extremely careful when it undertakes this
exercise.
46. The Supreme Court, in Krishan Kumar Malik v. State of Haryana
(2011) 7 SCC 130, observed as under:
"31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient provided the same inspires confidence
and appears to be absolutely trustworthy, unblemished and
should be of sterling quality. But, in the case in hand, the
evidence of the prosecutrix, showing several lacunae, which
have already been projected hereinabove, would go to show that
her evidence does not fall in that category and cannot be relied
upon to hold the appellant guilty of the said offences."
47. In Rai Sandeep v. State of NCT of Delhi (2012) 8 SCC 21 the Supreme
Court reiterated:
"15. In our considered opinion, the „sterling witness‟ should be
of a very high quality and calibre whose version should,
therefore, be unassailable. The Court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement made by
such a witness. What would be more relevant would be the
consistency of the statement right from the starting point till the
end, namely, at the time when the witness‟ makes the initial
statement and ultimately before the Court. It should be natural
and consistent with the case of the prosecution qua the accused.
There should not be any prevarication in the version of such a
witness. The witness should be in a position to withstand the
cross-examination of any length and strenuous it may be and
under no circumstances should give room for any doubt as to
the factum of the occurrence, the persons involved, as well as,
the sequence of it. Such a version should have co-relation with
each and everyone of other supporting material such as the
recoveries made, the weapons used, the manner of offence
committed, the scientific evidence and the expert opinion. The
said version should consistently match with the version of every
other witness. It can even be stated that it should be akin to the
test applied in the case of circumstantial evidence where there
should not be any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged against him. Only
if the version of such a witness qualifies the above test as well
as all other similar such tests to be applied, it can be held that
such a witness can be called as a „sterling witness‟ whose
version can be accepted by the Court without any corroboration
and based on which the guilty can be punished. To be more
precise, the version of the said witness on the core spectrum of
the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects
should match the said version in material particulars in order to
enable the Court trying the offence to rely on the core version to
sieve the other supporting materials for holding the offender
guilty of the charge alleged."
PW-4 not a reliable witness
48. This Court finds that the evidence of PW-4 is also not convincing.
Although the prosecution has been able to prove that the call to the PCR was
made from his mobile phone, it is pertinent to note that the PCR form itself
identifies the caller as one Vinod Seth, ASF Infrastructure Pvt. Ltd., who has
not been examined. As for the information given to the PCR, what the police
was told was that a man was taking away a woman. Even after the police
reached there and spoke to the victim, they were told that three men were
trying to forcibly take away the woman.
49. In Court, when he was examined, PW-4 stated for the first time that
when he asked the victim at the Bhogal Bus Stand, she told him that A-1
"along with two three persons had been committing rape upon her. She did
not name the other associates of accused Beeru". This was an improvement
made by PW-4 and over his previous statement to the police as is evident in
his reply as under in his cross-examination:
"I had stated to the police that Prosecutrix also told us that the
accused Beeru along with 2-3 persons had been committing
rape upon her. (Confronted with statement Ex.PW-4/DA, where
it is not so recorded.)"
50. This was a significant improvement which, for some reason, was
overlooked by the trial Court. It made PW-4 an unreliable witness. It is
another matter that despite knowing his mobile number and despite having
met him at the spot and noting this fact in the rukka, the police did not
record his statement until 12th February 2015, nearly 20 days after the
incident. Yet again, this delay has not been explained.
51. It also appears that PW-4 did not initially know the name of A-1. In his
cross-examination, he conceded that "I came to know the name of the
accused from the police officials". In other words, although PW-4 claimed
to have been present at the spot when A-1 was apprehended and that PW-1
had disclosed the name of A-1, in his cross-examination, he conceded that
he did not know the name of A-1 till the police official told him. This makes
the identification of A-1 by PW-4 in Court very doubtful. This Court is,
therefore, unable to be assured that PW-4 is speaking the complete truth.
Statements under Section 313 Cr PC
52. The Court‟s attention was drawn to the replies given by the three
Appellants in their respective statements under Section 313 Cr PC.
Interestingly, A-1 does not dispute that he was at the Bhogal bus stand.
Questions No.1, 7, 8, 33 and 34 and the answers thereto are significant in
this regard and read as under:
"Q.1 It is in evidence against you that on 24.01.2015 PW5 SI
Mahender Kumar pursuant to a call vide DD No. 37A,
Ex.PW5/A along with Ct. Rekha reached Bhogal Bus stand,
where the first informant, PW4 Sh. Asif Ahmed, prosecutrix
PW1 and you accused Beeru were found present; PW5 SI
Mahender Kumar sent you in the custody of one Constable to
PS Nizamuddin. What you have to say?
Ans. It is correct that I was apprehended from a little ahead of
bus stand Bhogal."
Q.7 It is in evidence against you that PW14 Insp. Indu Rani
interrogated and arrested you vide arrest memo Ex.PW14/D in
the presence of PW6 Ct. Rajender Singh; your personal search
was also conducted vide personal search memo Ex.PW14/E;
PW14 Insp. Indu Rani also recorded your disclosure
statement, Ex.PW14/B and pursuant thereof you pointed
out the place of incident vide pointing out memo, Ex.PW I4/C.
What you have to say?
Ans. It is a matter of record.
Q.8 It is in evidence against you that PW14 Insp. Indu Rani
obtained your five days police custody remand; pursuant to
your disclosure statement Ex.PW14/B you pointed out your co-
accused Islam and Ramesh @ Pindari and got them arrested in
the presence of PW6 Ct. Rajender Singh vide arrest memos
Ex.PW6/C and Ex.PW6/A respectively; their personal search
was also conducted vide personal search memos Ex.PW6/F and
Ex.PW6/E respectively. What you have to say?
Ans. It is incorrect.
Q.33 It is in evidence against you that at about 10:30 pm - 11:00
pm on that day while PW4 Sh. Asif Ahmed was waiting for
Okhla bound bus at the said bus stand, he saw you accused
Beeru dragging the prosecutrix PW1, a blind lady on the road
leading to Nizamuddin Railway Station; prosecutrix PW1 was
shouting "bachao bachao. yeh mujhe pakad ke le jaa rahan
hai". What you have to say?
Ans. It is incorrect.
Q.34 It is in evidence against you that after hearing the said
shouting public persons gathered at the spot; PW4 Sh. Asif
Ahmed with the help of public persons apprehended you
accused Beeru. What you have to say?
Ans. I was only sitting there. I was not apprehended by any public
person."
53. Thus, there was no convincing evidence that A-1 was trying to take
away PW-1 and was caught in that process. In what circumstances he was
trying to take her away is also not very clear. As far as A-2 and A-3 are
concerned, they do not appear to have been present. Each of them has
claimed to have been falsely implicated.
54. There is no evidence to show that the three Appellants even knew each
other. A-2 is a resident of a village in U.P whereas A-1 and A-3 are from
Madhya Pradesh but again from different villages. How the three of them
got together at the Hazrat Nizamuddin railway station and decided to jointly
commit this offence has not been sought to be explained by the prosecution.
This is another lapse in the investigation.
Errors of the trial Court
55. The conclusion in the impugned judgment of the trial Court about the
version of PW-1 being "consistent, coherent, creditworthy and intrinsically
reliable" overlooks the inconsistencies and improvements in her statements
at various stages as has been discussed hereinbefore. The further conclusion
of the trial Court that "there is no contradiction in the said version of the
prosecutrix on any material aspects of the case in her different statements",
is not supported by the record.
56. The trial Court accepted the evidence of PW-4 „as an independent public
person‟ without noticing the material improvement made by him in his
deposition in the Court regarding what was disclosed to him by PW-1 in the
very first instance. The trial Court has after noting that the version of PW-1
was not corroborated by either the medical or the forensic evidence observed
that the absence of such evidence "does not exonerate accused persons". The
question was whether such evidence corroborated the evidence of PW-1
which in the present case it did not.
Conclusion
57. For the aforementioned reasons, the Court finds it unsafe to hold the
Appellants guilty of any of the offences with which they have been charged
on the basis of the prosecution evidence. Consequently, the impugned
judgement of the trial Court convicting the Appellants for the offences with
which they were charged and the consequent order on sentence are hereby
set aside. The Appellants are acquitted of the offences with which they have
been charged.
58. The Appellants shall be set at liberty forthwith, unless wanted in any
other case. They will fulfil the requirements of Section 437A Cr PC to the
satisfaction of the trial Court immediately. The trial Court record be returned
forthwith along with a certified copy of this judgment. The appeals are
allowed and the applications are disposed of in the above terms.
S. MURALIDHAR, J.
VINOD GOEL, J.
OCTOBER 08, 2018
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