The men allegedly abducted the woman and her male friend from a road connecting Garhi Chaukhandi and village Parthala Khanjarpur near Noida, and took them to a forested area at village Bahlolpur, near the Hindon river.(Illustration: C R Sasikumar)
Eight years after the alleged gangrape of an MBA student in Noida, nine men were acquitted by a trial court citing lapses in investigation. A year later, the Juvenile Justice Board convicted a tenth accused in the same case, saying that the victim cannot be faulted for defects in the probe. Abhishek Angad analyses the judgments to understand how the two courts reached different conclusions
“It appears to be false case of implication of the accused persons at the hands of the Investigating Officer (IO). By creating many lapses in the investigation, leaving many threads untied, IO made it impossible that case be finally concluded in the conviction of the accused persons on the ground that they were involved in the commission of the offence,” said Additional Sessions Judge (ASJ) Shail Jain on February 16, 2017, while acquitting nine accused in a 2009 gangrape case.
“In the present case, the victim did not engineer the defects in the investigation. She cannot be faulted for defect and loopholes in the investigation procedure. This case has to be viewed on broad possibilities and since this board is of the opinion that the testimony of witnesses are of sterling worth, they are to be believed notwithstanding minor lacunae in investigation,” said Arul Varma, Principal Magistrate, Juvenile Justice Board (JJB), while convicting a juvenile on February 19, 2018 — for the same crime.
The case dates back to January 5, 2009, when a 24-year-old MBA student in Noida was allegedly gangraped by 11 persons — 10 adults and a juvenile. The men allegedly abducted the woman and her male friend from a road connecting Garhi Chaukhandi and village Parthala Khanjarpur near Noida, and took them to a forested area at village Bahlolpur, near the Hindon river.
Read | 2009 Noida gangrape: Juvenile convicted, sent to three years in reform home
The 11, allegedly armed with guns and knives, were accused of gangraping the woman, assaulting the two with cricket bats and wickets, and leaving with their mobile phones, jewellery and money. Initially, the woman’s friend did not give the correct location of the abduction, because he feared her parents might chide her.
On January 5, 2009, a written complaint was lodged by the man, and an FIR was registered at Noida’s Sector 39 police station under IPC sections 395 (dacoity), 397 (robbery or dacoity with attempt to cause death or grievous hurt), 376 (rape), 342 (wrongful confinement), 412 (dishonestly receiving property stolen in the commission of a dacoity) and 34 (common intention). The 10 men were arrested, and the juvenile was apprehended on January 10, 2009, from underneath the Mahamaya Flyover in Noida.
Evidence was collected and samples were sent to the Forensic Science Laboratory (FSL). Prints from the crime scene and the car were lifted and matched with those of the accused. The trial had just begun at the district court in Gautam Buddh Nagar, when the complainant filed a petition in the Supreme Court that the accused were threatening him. The case was transferred to Delhi and assigned to a sessions court in Tis Hazari in 2012. One of the adult accused died during trial.
Nine years after the incident, the case is again in the spotlight — owing to two judgments, one acquitting the nine adults, and another convicting the juvenile.
Calling it a classic case of “botched up” investigation by the IO, ASJ Jain noted, “After carrying the evidence led by the prosecution in the present case, including the medical, scientific and other evidence, it appears that the IO, Inspector Anil Samaniya, left no stone unturned in making this case impossible to be proved.” The IO could not be reached for a comment.
Principal Magistrate Varma said there is “unquestionably a ring of truth in the prosecution version”. “The evidence of prosecution witnesses has been amply strengthened by medical and scientific evidence… The witnesses have consistently deposed with regard to the commission of offence by the juvenile, and their evidence remains unshaken and uncontroverted during cross-examination.”
The Indian Express went through the orders by both courts to understand how different outcomes were arrived at, when the evidence placed on record was the same.
Medical evidence
The woman and her friend were medically examined by two doctors at the Noida government hospital on the intervening night of January 5-6, 2009. Another doctor examined the woman on January 12 and opined that “dead sperm” was found in her private parts, suggesting there had been “sexual intercourse”, court documents show.
Sessions Court: ASJ Jain said no opinion was given by either doctor whether the “sexual intercourse” to which she had been subjected to was “forced or not”. “Similarly, there was no opinion expressed by both doctors about there being possibility of gangrape by the 11 accused on the person. Doctor Anshu Gupta also said that she had not suffered any injury or swelling… where she admitted that in case 11 persons have committed sexual assault on an unmarried girl, there are chances that private parts will suffer swelling. Thus, the medical examination conducted on the prosecutrix (the woman) does not conclusively prove she was subjected to sexual intercourse by 11 accused persons. Although it is proved that prosecutrix was subjected to sexual assault or that she was involved in sexual intercourse during that night,” the court said.
On the presence of “dead sperm”, the court said no DNA examination was conducted on her, and that the IO had not placed the DNA report of the accused on record. The court, citing the testimony of a doctor, said blood samples of the accused were not collected properly and leaked during transportation. The court noted the doctor’s report that parcels with torn plastic pieces and papers, allegedly containing semen marks, were sent from FSL Agra to FSL Ranchi, but since they had already been used by Agra, “no conclusive report” came out. Therefore, no semen could be made available for DNA analysis.
JJB: “It is also of utmost importance to note that according to explanation to Section 376, penetration is sufficient,” Principal Magistrate Varma said. In his order, he said that Special Public Prosecutor (SPP) Neelam Narang has invited the JJB’s attention to the fact that there was “redness” in the woman’s private parts.
“No submissions regarding tampering of, or of improper seizure of the vaginal smear has been put forth by the counsel for the juvenile. The fact that dead sperm were found in the vaginal smear only lends credence to the factum of sexual assault. In every case of rape, injuries may not be present on the private parts. Secondly, prosecution is not required to prove injuries on the prosecutrix, when her testimony has been sufficiently corroborated and when it inspires confidence,” Judge Varma said.
Scientific Evidence
A team of fingerprint experts from Agra had lifted chance prints from the car and the crime scene. Fingerprints of all accused were taken by experts from the fingerprints bureau, Lucknow. According to court records, experts visited the crime spot, “Viru Ka Khet, Bahlolpur”, and recovered used tissue papers and napkins.
According to the JJB order, finger/palm print of five-six accused and the juvenile “matched” with chance prints lifted from the WagonR. The order also cited a fingerprint expert’s report, that prints of the juvenile and five adults matched chance prints from the crime scene.
Sessions Court: ASJ Jain noted SPP Narang’s submissions that fingerprints of the accused matched chance prints from the crime scene. However, the court said that after examining the fingerprint expert’s report and Narang’s arguments, coupled with testimonies, it is clear that fingerprints of only those accused arrested till January 8, 2009, matched the chance prints that had been collected.
The court further said, “Once the IO had created confusion with respect to the place of the incident, it is not clear which place of incident these fingerprints were taken by scientific officials at the instance of the IO; (and) whether the same were taken from the place of incident or Veeru Ka Khet, or place of incident which is called Pappu Ka Khet? If the IO himself was not aware of the actual place of incident, how could he get the same place inspected from scientific officers of FSL. This creates a dent in the story of the prosecution and makes it unreliable.”
The court said that, admittedly, no chance prints from the car were found to have matched the prints of the accused, as they were found to be “smudged and unclear”. “The reason may be because the car was left in the open and was not kept in proper custody. Therefore, I am of the opinion that even fingerprint evidence cannot be taken against accused persons and even this evidence has not been able to prove beyond reasonable doubt the commission of offence against the accused.”
JJB: Principal Magistrate Varma said that by virtue of fingerprint analysis, the prosecution has primarily tried to establish presence of the juvenile at the crime scene. The board said that if there was no evidence of tampering, the report had to be accepted.
“It is quite clear that the report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there has been no quality control or quality assurance. If the sampling is proper and if there is no evidence of tampering of samples, the report is to be accepted. No such proof of tampering has been demonstrated by defence… The scientific expert concluded that samples were authentic and capable of establishing identities of the persons concerned beyond reasonable doubt,” said Judge Varma.
The board said the analysis, coupled with the testimonies of prosecution witnesses, cogently links the juvenile with the victim and the crime scene. “There is no reason to declare the fingerprint report inaccurate, especially as it incontrovertibly proves that the juvenile was present in the car at the time of incident,” Judge Varma said.
The court also took into into account the SPP’s submission that the “clinching piece of evidence” linked the presence of juvenile at the place of offence — his prints matched with those lifted from the car. “The juvenile offered no explanation… Thus, scientific evidence squarely points out to the complicity of the juvenile in the crime,” the JJB said.
Case properties
There were two types of case properties: one that was looted, and the other were weapons allegedly used by the accused. Mobiles phones of the woman and her friend, her ATM card and gold ring, as well as cash had been looted, while cricket wickets and bats were allegedly used to beat the two. During the arrests, police maintained all these articles had been recovered.
Sessions Court: The judge noted that all alleged weapons were neither “sealed” at the time of seizure, nor put to “identification in judicial TIP (test identification parade)”, and that there were chances of “manipulation” of the case property.
“ATM card belonging to the prosecutrix was recovered from the house of one of the accused, lying under the bedsheet. It is difficult to imagine that a person who has committed gangrape and dacoity will keep the ATM card of the victim even after three days of the incident, knowing full well that the co-accused has already been arrested and the ATM card could not have been used without knowing the PIN. It is not the case of the prosecution that the prosecutrix was forced to tell the PIN…,” the court said. The court added that the natural conduct of the accused will be to get rid of any article that could connect him to the crime. “Prosecution has not proved recovery of these articles from the accused beyond reasonable doubt,” it said.
On recovery of mobile phones, the court said that no call data analysis or bills were produced to prove on record that the phones belong to the complainant or the woman. Regarding the identification of the alleged weapons, bats and wickets, the court said it is common knowledge that people in India are fans of cricket and that boys start playing cricket from a “very early age” of two-three years when they can “hold” the bat. “Therefore, finding cricket wickets and bats from some people will neither (make) these articles weapons of offence, nor the people can be called offenders in all cases,” the court said.
On the recovery of the woman’s gold ring, the court said that the IO could identify it based on the two letters inscribed on it. However, the court noted that another officer, also a prosecution witness, had differed on the letters on the ring. “The contradictory statements raise doubt about the genuineness of the ring,” the court noted. Asked by the defence counsel how she will identify the ring, the woman said it was given by her mother, but she did not mention the inscription, the court noted. “Even otherwise, the inscription could not match the name of the prosecutrix… Therefore, the recovery of the ring belonging to the prosecutrix from the possession of the accused is doubtful,” the court said.
JJB: The court said that after reading testimonies, it was “abundantly explicit” that recoveries were effected on January 10, 2009, from the juvenile as well as others. On recovery of mobile phones, the JJB said, “What manipulation can possibly take place has not been explained. The question was not of content or data of the mobile phone, but of the model, and ownership of the phone itself…”
The JJB said the juvenile was in possession of articles of the complainant, which is a “mitigating” circumstance against him, “and it is for the juvenile to explain as to how he came into possession of these articles”. The JJB added that recoveries were made when the juvenile was in custody. “The witnesses who have deposed with regard to the recoveries have remained absolutely unshaken and in fact nothing has been elicited from them to disprove their creditworthiness,” it added.
Asked about the two verdicts being arrived at in the same case, SPP Narang told The Indian Express, “After the trial court order, which acquitted the nine, I had recommended the government to file an appeal in the High Court. Last month, the JJB found a person, who was a juvenile then, involved in the gangrape… We welcome the judgment.”
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Points of view
Delay In Statement
The trial court said the statements were recorded before a magistrate more than a month later, and that “no explanation has been tendered”.
The JJB said no fault can be attributed to the prosecutrix for this delay. “Moreover, as rightly pointed out by SPP, it is the criminal law (Amendment Act) 2013 that makes it mandatory to record the statement under CrPC Section 164 as soon as the commission of offence is brought to the notice of police. However, before the amendment, there was no such mandatory requirement, and the prosecution cannot be blamed for this delay,” the JJB said.
Identification Of Accused
The trial court said the “offence of gangrape was allegedly committed in the dark… at a secluded place where there was no provision of light”. “Only the parking light of the car… and inner small light… was lit… To my mind, the inner light of the car could not have been sufficient… that the prosecutrix would have been able to identify or remember the faces of the accused…,” the court said.
The JJB, however, said the woman had described the crime and identified the juvenile before the board. “The prosecutrix had no motive to file a false case against the juvenile,” it said.
No Judicial TIP
The trial court said that the woman and her friend had told the IO that while returning from a hospital on January 7, they saw the five accused and identified them. “No statement was recorded by the IO,” the court said, adding that a TIP of the accused was not conducted.
“It is only stated by the prosecution witnesses that prosecutrix and complainant miraculously happened to be present at the same time and at the same spot, when the accused were being transported to the court or arrested or were present in the court itself, without being informed by the IO… Prosecution has not been able to prove that accused persons were rightly identified by the prosecutrix and the complainant,” the court said.
The JJB said a TIP before an investigating agency is not a substantive piece of evidence. “Its sole purpose is to corroborate the testimony of the witness. Thus, the fact that a TIP was not conducted does not affect the case of prosecution. What matters is the identification of the offender, and that was duly done before the board.”