This batch of criminal appeals challenged conviction and sentence in a gang rape case involving a Danish tourist. The High Court found the victim's testimony credible and held it was corroborated by DNA evidence, despite flaws in the recording of some physical evidence.
All appeals were dismissed, confirming the conviction and sentence of the trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~2 to 6 * IN THE HIGH COURT OF DELHI AT NEW DELHI
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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
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Section 397 IPC and Arjun (A-4) and Mohd. Raja (A-5), were held guilty of the offences punishable under Section 412 IPC.
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
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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
Background
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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.
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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
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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.
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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.
Arrests and disclosures
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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.
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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
Impugned judgment of the trial Court
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Analysis of the evidence of PW-12
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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.”
“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.”
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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.
“We must remember that a rapist not only violates the victim's
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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.”
“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
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falsely implicate the accused after staking her own prestige and honour.
The forensic evidence
“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).
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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.
Reliability of the eye-witness account
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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.
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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.
Conclusion
S. MURALIDHAR, J.
I.S. MEHTA, J.
APRIL 16 2018/ ‘anb’
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3 issues framed by the court
Whether the High Court should interfere with the conviction and sentence of the appellants despite the victim's uncertainty about some co-accused after a 18-month lapse.
Whether the evidence of the eyewitness PW-2, who was not precisely located on the site plan, should be accepted as reliable.
Whether the DNA evidence corroborating the presence of appellants at the scene of the crime is sufficient to sustain the conviction.
Colour shows how this judgement treated each authority
State of Punjab v. Gurmit SinghExplained¶96
State of Punjab v. Gurmit Singh AIR 1996 SC 1393 · Who else cites this
Om Prakash v. State of U.P.Explained¶101
Om Prakash v. State of U.P. AIR 2006 SC 2214 · Who else cites this
6 provisions across 2 enactments
MAHENDER @ GANJA
MOHD. Raja
RAJU BHAJJE @ RAJU BHAGAT
ARJUN
RAJU CHHAKA
STATE
S. MURALIDHAR
I.S. MEHTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
S. MURALIDHAR and I.S. MEHTA
Parties & counsel
