The Delhi High Court today upheld the sentence of life imprisonment till death awarded to five convicts for gangraping a 52-year-old Danish woman here in 2014, saying the most important scientific evidence, the DNA report, has proven their guilt.
The court, however, took a serious view over the lapse of the investigating officer (IO) in not preparing a proper site-plan of the place of the crime, saying this was "very important" as it is very rare that there are witnesses to such crimes other than the victim.
A bench of Justices S Muralidhar and I S Mehta noted that the foreigner was raped for five hours and said if she was raped in a secluded area among the bushes, the IO has to satisfy himself by standing at the mud hill of the construction area to see if the crime spot was visible and "this basic exercise of reconstruction of the crime scene was not done".
The high court dismissed the appeal of the convicts challenging their conviction and jail term awarded by a trial court in 2016.
The trial court had awarded the maximum punishment while making it clear that rigorous imprisonment for life means jail till remainder of natural life of the convicts -- Mahender alias Ganja (25), Mohd Raja (23), Raju (23), Arjun (21) and Raju Chakka (30).
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The court had also imposed a fine of Rs 81,000 each on Raju and Raju Chakka, Rs 91,000 each on Mahender and Mohd Raja and Rs 1,01,000 on Arjun respectively.
It said the testimony of the victim and the DNA report, which was a "clinching" piece of evidence, have nailed the guilt of the convicts.
"In view of the victim's evidence, corroborated by the DNA report, this court his satisfied that the conclusion of the trial court on the guilt of the accused is correct. Accordingly, the appeals are dismissed," the bench said.
The high court, meanwhile, rejected the testimony of an eyewitness, who claimed to have seen the accused persons committing the crime, saying he could not be accepted as a natural witness.
It said the witness claimed to be standing at the construction site and seeing the crime but the site plan prepared by the police showed the construction side and did not indicate the spot where the man was supposed to be seen standing. Even the witness was not questioned on this aspect in the trial court, the bench said.
"Carelessness of the IO is seen in undertaking the investigation of the case," it said.
During the hearing, advocate Amit Chadha, appearing for the Delhi Police, said the DNA of all the accused had matched with the samples taken from other articles belonging to the victim in Denmark's Copenhagen and India and the woman was examined in the trial court over 18 months after the incident, so some indulgence must be granted.
The court rejected the contention of the counsel for the convicts that the prosecution had manipulated the evidence under media pressure and said the DNA profile connected the convicts with the crime and there was also a similarity in the forensic report sent by Denmark authorities with the DNA report prepared in India.
"If the accused's DNA has been found on the top which the victim was wearing at the time of the incident, it is for the accused to explain how it reached there," it said.
Without the DNA report, the whole case of the prosecution would have collapsed which was "very sad", the bench said while lamenting over weak investigation.
"It is a miracle that the DNA profiling has matched. Otherwise this case would have gone no where," the bench observed while hearing arguments on the appeals.
It noted that the victim stood firm during her cross examination by the counsel for the accused before the trial court.
The trial court had on June 10, 2016 awarded life imprisonment till death to the five rapists, saying their "inhuman" and "brutal" acts of abduction and gangrape in 2014 had put a stigma on the reputation of the nation.
The court had held the five men guilty for the offences under IPC sections 376 (D) (gang rape), 395 (dacoity), 366 (kidnapping), 342 (wrongful confinement), 506 (criminal intimidation) and 34 (common intention).
The sixth accused, 56-year-old Shyam Lal had died in February this year and proceedings against him were abated. The court said it was not dealing with Lal's case as he has already expired. The other three accused were juveniles.
According to the police, the nine persons, all vagabonds, had robbed and gangraped the Danish tourist at knife-point on the night of January 14, 2014, after leading her to a secluded spot close to the Divisional Railway Officers' Club near the railway station.
The victim had come here on January 1, 2014, and stayed for a couple of days before leaving for Agra. After visiting several places, she returned to Delhi on January 13, 2014, and stayed in a hotel in Paharganj near the station.
The next day when she was returning to her hotel, she lost her way and had asked one of the accused for directions when the men waylaid and gangraped her.
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