Delhi High Court
Anwar vs State Govt Of Nct Of Delhi on 10 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 25.02.2026
Judgment pronounced on:10.03.2026
+ CRL.A. 896/2017 & CRL.M.(BAIL) 1198/2021
ANWAR .....Appellant
Through: Mr. Aseem Bhardwaj, Mr. K.K.
Vijay, Mr. Gaurav Kumar and Ms.
Nikita Vijay, Advocates.
versus
STATE GOVT OF NCT OF DELHI .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Jitender P.S. Nangloi.
Ms. Vrinda Bhandari, (DHCLSC)
with Ms. Vanshita, Ms. Pragya
Barsaiyan and Ms. Nitya Jain
Advocates
Mr. Himanshu Anand Gupta,
Advocate for DSLSA with Ms. Mansi
Yadav, Mr. Siddharth Barua, Mr.
Shekhar Anand Gupta, Mr. Mike
Desai, Mr. Navneet Kaur and Ms.
Shivani Rampal, Advocates
+ CRL.A. 1051/2017
SANDEEP .....Appellant
Through: Mr. Satyam Thareja, (DHCLSC) with
Ms. Vasundhara Nagrath and Mr.
Shaurya Katoch, Advocates.
versus
STATE .....Respondent
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Signed By:KOMAL
DHAWAN
Signing Date:10.03.2026
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Through: Mr. Utkarsh, APP for the State with
SI Jitender P.S. Nangloi.
Ms. Vrinda Bhandari, (DHCLSC)
with Ms. Vanshita, Ms. Pragya
Barsaiyan and Ms. Nitya Jain
Advocates
Mr. Himanshu Anand Gupta,
Advocate for DSLSA with Ms. Mansi
Yadav, Mr. Siddharth Barua, Mr.
Shekhar Anand Gupta, Mr. Mike
Desai, Mr. Navneet Kaur and Ms.
Shivani Rampal, Advocates
+ CRL.A. 985/2017
ANISH KUMAR .....Appellant
Through: Mr. S.S. Ahluwalia and Ms. Rimpy
Rohilla, Advocates along with
appellant in person.
versus
STATE .....Respondent
Through: Mr. Utkarsh, APP for the State with
SI Jitender P.S. Nangloi.
Ms. Vrinda Bhandari, (DHCLSC)
with Ms. Vanshita, Ms. Pragya
Barsaiyan and Ms. Nitya Jain
Advocates
Mr. Himanshu Anand Gupta,
Advocate for DSLSA with Ms. Mansi
Yadav, Mr. Siddharth Barua, Mr.
Shekhar Anand Gupta, Mr. Mike
Desai, Mr. Navneet Kaur and Ms.
Shivani Rampal, Advocates
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CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In these appeals filed under Section 374 of the Code of
Criminal Procedure, 1973 (the Cr.P.C.), the appellants/accused
persons, 3 in number, in S.C. No. 135 of 2013 on the file of the
Additional Sessions Judge (Special Fast Track Court)-01, West,
Tis Hazari Courts, Delhi, assail the judgment and order on
sentence dated 18.07.2017. Vide the impugned judgment and order
on sentence, the accused persons have been convicted and
sentenced for the offence punishable under Section 376D of the
Indian Penal Code, 1860 (the IPC).
2. The prosecution case is that on 31.05.2013 at about
11:00 P.M., when PW11, the victim, came out of the washroom
situated outside her house, A1 forcibly abducted her and made her
sit in a Santro car. A2 and A3 caught hold of PW11 while A1
drove the vehicle. Thereafter, PW11 was taken to a godown at
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Kamruddin Nagar, Delhi, where A1 to A3, in furtherance of their
common intention, committed gang rape on her one after the other.
As per the chargesheet/final report dated 18.07.2013, the accused
persons are alleged to have committed the offences punishable
under Sections 363and 376(2)(g) IPC.
3. Based on Exhibit PW11/A FIS of PW11, crime no.
167/2013 Nangloi Police Station, i.e., Mark A FIR, was registered
by PW6, Assistant Sub Inspector. PW18, Woman Sub-Inspector,
conducted investigation into the crime and on completion of the
same, submitted the chargesheet/final report dated 18.07.2013
before the trial court, alleging the commission of the offences
punishable under the aforementioned Sections.
4. When the accused persons were produced before the
trial court, all the copies of the prosecution records were furnished
to them as contemplated under Section 207 Cr.P.C. After hearing
both sides, the trial court vide order dated 07.09.2013, framed a
Charge for the offences punishable under Section 366 read with
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Section 34 IPC and Section 376D IPC, which was read over and
explained to the accused persons, to which they pleaded not guilty.
5. On behalf of the prosecution, PWs.1 to 19 were
examined and Exhibits PW1/A-C, PW2/A, PW3/A, PW4/A,
PW5/A-B, PW6/A-B, PW7/A-C, PW9/A-B, PW10/A, PW11/A-E,
PW14/A, PW15/A-B, PW17/A-C, PW18/A-G, PW18/PX1-2,
Mark A FIR, Mark A MLC and Mark C were marked in support of
the case.
6. After the close of the prosecution evidence, the accused
persons were examined under Section 313(1)(b) Cr.P.C. with
respect to the incriminating circumstances appearing against them
in the evidence of the prosecution. All the accused persons denied
the said circumstances and maintained their innocence.
7. After questioning the accused persons under Section
313(1)(b) Cr.P.C, compliance of Section 232 Cr.P.C was
mandatory. In the case on hand, no hearing as contemplated under
Section 232 Cr.P.C is seen made by the trial court. However, non-
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compliance of the said provision does not, ipso facto vitiate the
proceedings, unless omission to comply with the same is shown to
have resulted in serious and substantial prejudice to the accused
(See Moidu K. vs. State of Kerala, 2009 (3)KHC 89 : 2009 SCC
OnLine Ker 2888). Here, the accused persons have no case that
non-compliance of Section 232 Cr.P.C has caused any prejudice to
them.
8. The accused persons adduced no oral or documentary
evidence.
9. On consideration of the oral and documentary evidence
and after hearing both sides, the trial court, vide the impugned
judgment and order on sentence dated 18.07.2017, held the
accused persons guilty of the offence punishable under Section
376D IPC. They have been acquitted under Section 235(1) Cr.P.C.
of the offence punishable under Section 366 IPC read with Section
34 IPC. The accused persons have been sentenced under Section
235(2) Cr.P.C. to undergo rigorous imprisonment for a period of
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20 years along with fine of ₹25,000/- each and in default of
payment, to simple imprisonment for a period of 2 years.
Aggrieved, the accused persons have preferred these appeals.
10. Heard both sides and perused the records.
11. The only point that arises for consideration in this
appeal is whether the conviction entered and sentence passed
against the appellants/accused persons by the trial court, despite
PW11, the victim, changing her versions repeatedly during the
course of her examination before the trial court is justifiable and
can be sustained.
12. The gist of the case of PW11, the victim, in Exhibit
PW11/A FIS recorded on 01.06.2013 is as follows:- On
31.05.2013 at about 11:00P.M., when she went to the bathroom
situated outside her house and was returning therefrom, she found
Anwar (A1) standing outside the bathroom. As soon as she came
out, Anwar (A1) caught hold of her hand, dragged her and pushed
her into a white Santro car. Anish Kumar (A2) and Sandeep (A3),
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friends of Anwar (A1), were already present inside the vehicle.
Anish Kumar (A2) and Sandeep (A3) held her down inside the car
while Anwar (A1) drove the vehicle, and when she raised alarm,
one of them covered her mouth. The vehicle was taken to a
godown at Kamruddin Nagar, where all three of them pulled her
out of the car and took her inside a room within the godown
premises. A wooden platform (takht) was lying therein. She was
pushed onto the said platform. Anwar (A1) removed her salwar
while Sandeep (A3) restrained her. Thereafter, Anwar (A1) raped
her, followed by Anish (A2), and thereafter by Sandeep (A3).She
was again placed in the car and was pushed out onto the road in
front of Bankey Bihari shop in the early morning hours, after
which they drove away. She reached her house at about 6:30A.M.
and narrated the entire incident to her mother. She accordingly
prayed that strict legal action be taken against A1, A2, and A3 in
accordance with law.
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13. Exhibit PW7/A, the Section 164 statement of PW11, is
seen recorded on 03.06.2013 in which she states thus: – “At
11:00P.M., she was outside her house, about 17 steps away,
brushing her teeth when Anwar (A1) knocked on the bathroom
door. As soon as she came out, they, namely, Anwar (A1),
Sandeep (A3) and one of their associates, whose name she does
not know, pulled her inside a Santro Car. The three of them took
her into a warehouse. All three had been drinking alcohol. There
was a dark-complexioned man in the back of the car, Sandeep (A3)
pinned her down and gagged her mouth. There was a room built
inside the warehouse where the three committed wrong act on her
and threatened that they would not let her approach the Court and
would shoot her. Anwar (A1) lives in her neighbourhood. On the
day of giving the statements, Anwar’s friends came to her house
and threatened them. They told her elder sister Mona, not to testify
and told them to either take the money or that day they would
kidnap the entire family. They were told that they would not be
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permitted to reach the Court. When her mother did not find her at
home, the police was informed. The three of them kept driving her
around in the car all night, and as soon as it was morning, they
pushed her out on the road. They threatened her that if she told her
parents, they would be killed. As soon as she reached home, she
told her mother everything. The police arrived at 06:00 A.M and
took her to Sanjay Gandhi Hospital at around 01:00 P.M.
14. PW11, when examined before the trial court on
19.11.2013, was unable to recall the date or month of incident. She
deposed that in the summer of 2013, at about 11:00P.M., she had
gone to the bathroom situated about 15 to 20 steps away from her
room for attending the call of nature. When she was inside the
bathroom, someone knocked on the door from outside. As soon as
she came out, A1 who was behind the curtain, caught hold of her
hand and pulled her inside a car. A3 and one other person were
already in the car. All three of them took her to a godown situated
in Kamruddin Village. They took her inside a room in the said
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godown, and each of the three accused persons raped her against
her will. She further deposed that at the time of the incident, she
was 17 years and 8 months old. The accused persons threatened
her that in case she made any complaint, they would kill her or
kidnap her elder sister. Thereafter, the following day, at about
05:00A.M., the accused persons left her near the roadside,
following which she reached her house weeping and narrated the
entire incident to PW12, her mother. PW11 further deposed that
the family members of all three accused persons were threatening
her and family not to depose in the present case. Even on the day
of Janmashtami, her father was assaulted by some unknown
persons. The cross-examination of PW11 was adjourned at the
request of the defence counsel.
14.1. PW11 was cross-examined on 06.02.2014. PW11
deposed that prior to the incident she had never made any physical
relations with anybody and had never gone with A1 anywhere. She
had only seen A1 once or twice at the house under construction in
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front of her house and had never seen the other two accused
persons. She deposed that she never knew the accused persons by
name prior to the incident and that she never identified the three
accused persons in any Test Identification Parade (TIP). She
denied having gone out with A1 at about 08:00P.M. from her
house on the date of the incident. Her mother had never made any
complaint to the police regarding the same. PW11 deposed that she
does not know whether any call came on A1’s mobile phone. She
denied that PW12, her mother, had called A1 at 1:47:54 hrs. on
01.06.2013 from her brother’s mobile phone, and that A1 had
given the phone to her and that her mother had instructed her to
return home as her father had woken up. PW11 denied calling A1
from her brother’s phone at around 10:56P.M.on 31.05.2013 asking
him to pick her up. PW11 admitted that the Shukra Bazar (weekly
market) had been set up in the street on 31.05.2013 and that her
house is located on the main road where many vehicles and people
were passing by. She admitted that there was a significant crowd at
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the market. Further, cross-examination was adjourned as the
prosecutor was unavailable during the post-lunch session and as
the trial court had other work to be completed.
14.2. PW11 was recalled and further cross-examined on
04.06.2014. On the said day she deposed thus: –
“… I never met accused Anwar in the house which was under
construction. I had friendship with accused Anwar. I had
physical relations with accused Anwar with my free consent.
It is correct that though I had gone with accused Anwar in
the night on the day of incident but in the night my father
came to know and because of his fear I had lodged this
complaint Ex.PW 11/A in PS. I knew only accused Anwar
and not other accused persons.”
(Emphasis Supplied)
14.3. On the said day also, her examination was not
completed, and hence further cross-examination was adjourned for
lack of time. PW11 was recalled and cross-examined further on
18.07.2014. On the said day, she deposed that there was no
electricity in the godown during the night and it was dark and that
due to darkness, she could not see the other two persons at the time
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of the incident. She knew only A1 prior to the incident and did not
know the other two persons. She was shown all the three accused
persons at the Police Station. She was not taken by the police to
Tihar Jail for identification of the culprits in any TIP. She further
deposed thus: –
“…It is correct that whatever I have deposed in my
examination in chief was due to the fear of my father and the
police.”
(Emphasis Supplied)
14.4. At this juncture, the prosecutor sought permission of
the trial court to re-examine PW11, as she had changed her stand
in the cross examination. The request was allowed by the trial
court. PW11 was re-examined by the prosecutor on 16.10.2014.
On the said day, she deposed thus: –
“It is correct that whenever I had appeared and
depose before this Court I have taken Oath to tell the truth to
the Court. I am aware that I am required to speak the truth
before Court and I am also aware that in case I do not speak
the truth before the Court, I can be punished for the same.
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My father had threatened me to beat me, if I did not
depose as per his instructions. This was on the same day
when the incident had occurred. He told me that I have
spoiled the reputation of the family. I had gone with my
mother to the PS and made the complaint. My father had
come there later on after about 10 minutes. At that time the
complaint was in the process of being written. I had
mentioned the names of accused Anwar, Anish and Sandeep
in the complaint as I had seen them in the car. All the three
accused had brought me in the car and left me near my
residence by bringing me from the godown where the
incident had occurred. All the three accused persons were
present in the godown.
I had stated all the facts correctly before the Ld. MM
in my statement u/s 164 Cr.P.C.
I had been threatened by the friend of accused Anwar
and they had tried to injure me in my stomach with glass
(kaanch se paet pai vaar karne ki koshish ki thi) and they had
also pressed my neck to kill me. This happened about one
and half months ago but I do not remember the exact date.
The same is mentioned in the medical record. Out of fear I
had falsely deposed before the Court on 04.06.2014 and
18.07.2014.
I had gone to PS Nihal Vihar with my complaint when
I was threatened and assaulted by the friends of accused
Anwar but the police did not take my complaint in writing.
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However, on my verbal complaint, I was taken to SGM
hospital by the police where I was medically examined. I
have brought emergency registration card. The same is Ex.
PW11/E (the Addl. PP has pointed out that the date
mentioned in the emergency registration card of the
prosecutrix is 20.04.2014).
Out of fear and due to the threats, I was compelled to
change my stand in my cross examination dated 04.06.2014
and 18.07.2014.
It is correct that on 13.05.2013 at about 11.00 pm all
the accused persons Anwar, Anish and Sandeep had
abducted me from outside bathroom near house no. 4, Extn.
4 Maharaja wali gali, near water tank, Delhi and taken me to
a room constructed at bank godown Shukur Bazar Road
(Friday market road) Extn- 2 C Nangloi, where I was gang
raped by all the accused persons.”
(Emphasis Supplied)
The case was again adjourned on the request of defence
counsel.
14.5. When PW11 was further cross-examined on
28.10.2014, in the light of her testimony in the re-examination, she
deposed thus: –
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“I am not under any fear today. It is correct that I
have changed my statement before this Court as initially I
had deposed against the accused persons in my examination
in chief, retracted in my cross examination and again
deposed against the accused in my re-examination by the
State.
It is correct that on 31.05.2013 at night I had received
a call from my residence made by the mobile phone of my
brother by my mother on the mobile phone of accused
Anwar. My mother was not aware that I was with accused
Anwar.
It is correct that about two months ago there was a
fight when my mother and I had gone to the office of some
one, where we had forcibly pushed open the door and broken
the windows and had fought with the occupants of the office.
It is correct that the MLC which I had filed which is
Ex.PW11/E is regarding that very fight and not regarding
any incident relating to the accused persons.
It is also correct that I have deposed falsely in my re-
examination dt. 16.10.2014 that out of fear and due to the
threats I was compelled to change my stand in my cross
examination dated 04.06.2014 and 18.07.2014.
It is correct that out of fear of my father I had given
my evidence as elaborated in my statement under section 164
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correct that if I was not under fear of my father, I would not
have deposed against all the accused persons.
It is wrong to suggest that the accused Anwar and
Sandeep never committed any rape or that I had gone with
Anwar of my own consent being major. It is further wrong to
suggest that accused Sandeep and Anwar never committed
any rape upon me.”
(Emphasis Supplied)
15. The trial court, while acquitting the accused under Section
366 IPC, held that abduction was not proved beyond reasonable doubt
and that doubt existed as to whether PW11 had gone with A1 of her
own volition. Once such doubt was recorded about the genesis of the
occurrence, the burden upon the prosecution to prove absence of
consent under Section 375 IPC became heavier and needed
unimpeachable proof. The conviction under Section 376D IPC rests
primarily upon the testimony of PW11 read with the DNA report. It is
therefore imperative to assess whether PW11 qualifies as a reliable
witness whose testimony can be acted upon.
16. In the light of the testimony of PW11, to which I have
referred to in detail, the learned Prosecutor was asked whether the
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conviction by the trial court is liable to be confirmed. It was quite
vehemently and strenuously argued by the learned Additional
Public Prosecutor as well as by the learned counsel for PW11, the
victim, that the trial court was perfectly justified in convicting the
accused persons in the light of the testimony of PW11 in her
examination-in-chief as well as re-examination. To support this
argument, reference was made to the decision of a Co-ordinate
Bench of this Court in Harvinder v. State (NCT of Delhi), 2025
SCC OnLine Del 6701 and the decision of the Apex Court in
Vinod Kumar v. State of Punjab, (2015) 3 SCC 2020. It was
pointed out that PW11 had fully supported the prosecution case in
her examination-in-chief which is in consonance with her earlier
statements, i.e., the FIS/FIR and her 164 statement. PW11 turned
hostile only because cross-examination was conducted after a
period of more than one year of her examination-in-chief, by
which time she was won over by the accused persons. However, in
the re-examination, PW11 corrected her mistake and supported the
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prosecution version and hence, her cross-examination on
04.06.2014 and 28.10.2014 are liable to be ignored, argued the
learned prosecutor and the learned counsel for PW11, the victim.
17. Vinod Kumar (supra) was a case under the Prevention
of Corruption Act, 1988. One of the witnesses, a panch witness,
turned hostile. The Apex Court, inter alia, considered the question
whether testimony of a hostile witness can be relied upon or not. It
was noticed that in the examination -in- chief, the witness had
supported the prosecution story in its entirety. However, in the
cross-examination, he did not support the prosecution case. After
referring to the earlier decisions of the Apex Court, it was held that
even if a witness is characterised as a hostile witness, his evidence
is not completely effaced. The said evidence remains admissible in
trial and there is no legal bar to base a conviction upon his
testimony, if corroborated by other reliable evidence. The evidence
of such a witness cannot be effaced or washed off the record
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altogether but, but the same can be accepted to the extent, it is
found to be dependable on a careful scrutiny thereof.
17.1. Harvinder (supra) was a case involving the offence of
rape. The prosecutrix as well as her father turned hostile. It was
held that though the prosecution witnesses have turned hostile,
their testimony cannot be washed off or rejected in toto. Their
evidence merits a closer scrutiny and the portion of the evidence
which is consistent with the case of the prosecution or defence can
be relied upon. After employing caution and separating the truth
from exaggeration, lies and improvements, the court can come to
the conclusion that the residuary evidence is sufficient to secure a
conviction. After referring to the various decisions of the Apex
Court on the point it was held thus: –
“13. Records would reveal that the prosecutrix has
maintained consistency in relation to the material facts of the
offense across multiple stages. She has consistently stated
that she was contacted by appellant/Lalu on 29.12.2014, was
taken by appellant/Harvinder to Bhajanpura on the pretext of
a job, was given milk after which she felt uneasy, and wasSignature Not Verified CRL.A. 896/2017& connected matters Page 21 of 38
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thereafter raped by both appellants. This version is recorded
in the initial complaint on 01.01.2015 (Ex PW1/A), her brief
description of the incident in the MLC (Ex. PW1/E) prepared
on. 01.01.2025, her statement under Section 161 CrPC
dated. 01.01.2025, her statement under S. 164 CrPC
recorded on 03.01.2015 (Ex PW1/F), and her examination-
in-chief recorded on 05.10.2015 and 30.05.2016). It was only
in her cross examination which was recorded on 26.09.2016
i.e. almost a year later that she turned hostile. Pertinently,
when she was re-examined on 23.10.2017, she again re-
affirmed her earlier version and stated that she had deposed
truthfully during her examination-in-chief on 05.10.2015 and
30.05.2016. Thus, overall, she has remained consistent and
the cross-examination appears to be a lone aberration. Her
entire testimony cannot be effaced from the record only on
this account………..”
(Emphasis Supplied)
18. As is evident from a reading of the aforesaid
paragraph, the conclusion is that the prosecutrix has given a
consistent version in her FIS/FIR; in her Section 161 statement and
in her Section 164 statement. Thus, overall she has remained
consistent and that the “lone aberration” is her version in the
cross-examination.
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18.1. The statements made under Section 161 Cr.P.C. are
statements made to the police during the course of investigation
and the same cannot be used except for the purpose stated in the
proviso to Section 162(1) Cr.P.C. Under the proviso to Section
162(1) Cr.P.C., such statements can be used only for the purpose
of contradicting a prosecution witness in the manner indicated in
Section 145 of the Evidence Act and for no other purpose. They
cannot be used for the purpose of seeking corroboration or
assurance for the testimony of a witness in court. [See Tahasildar
Singh v. State of UP, AIR 1959 SC 1012; Satpal v. Delhi
Administration, (1976) 1 SCC 727 and Delhi Administration v.
Lakshman Kumar, 1985 KHC 741: (1985) 4 SCC 476].
18.2. It is well settled that a statement under Section 164
Cr.P.C. is not a substantive piece of evidence of the truth of the
facts stated. It can be used to corroborate or contradict the maker
(See Brij Bhushan Singh v. Emperor, AIR 1946 PC 38;
Mamand v. King Emperor, AIR 1946 PC 45; Bhuboni Sahu v.
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The King, AIR 1949 PC 257; State of Delhi v. Ram lohiya, AIR
1960 SC 490; State of Rajasthan v. Kartar Singh, AIR 1970 SC
1305; Ramkishan Singh v. Harneet Kaur, AIR 1972 SC 468
and Dhanbal v. State of Tamil Nadu, AIR 1980 SC 628).
18.3. Likewise, FIS/FIR is also not a substantive piece of
evidence. It can only be used to corroborate the informant under
Section 157 or to contradict the informant under Section 145 of the
Evidence Act if the informant is called as a witness at the time of
trial. It cannot be used for corroboration or contradiction of any
witness other than the one lodging the FIS/FIR [See State of
Madhya Pradesh v. Ramjan Khan, 2024 INSC 823 and
Dharma Rama Bhagare v. State of Maharashtra, (1973) 1 SCC
537].
18.4. On the other hand, the testimony of a witness before the
court is substantive evidence. The testimony includes examination
-in-chief, cross examination and re-examination. The right of cross
– examination is included in the right of an accused in a criminal
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case, to confront the witness against him not only on facts but also
to discredit the witness by showing that his testimony – in – chief
was untrue and biased. The purpose of cross-examination of a
witness has been succinctly explained by a Constitution Bench of
the Apex Court in Kartar Singh v. State of Punjab, 1994 KHC
1173: (1994) 3 SCC 569 thus-
“S.137 of the Evidence Act defines what cross – examination
means and S.139 and S.145 speak of the mode of cross –
examination with reference to the documents as well as oral
evidence. It is the jurisprudence of law that cross –
examination is an acid – test of the truthfulness of the
statement made by a witness on oath in examination – in –
chief, the objects of which are : (1) to destroy or weaken the
evidentiary value of the witness of his adversary; (2) to elicit
facts in favour of the cross – examining lawyer’s client from
the mouth of the witness of the adversary party; (3) to show
that the witness is unworthy of belief by impeaching the
credit of the said witness; and the questions to be addressed
in the course of cross – examination are to test his veracity;
to discover who he is and what is his position in life; and to
shake his credit by injuring his character.”
(Emphasis Supplied)
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18.5. The aforesaid view has been reiterated in Jayendra
Vishnu Thakur v. State of Maharashtra 2009 KHC 4688:
(2009) SCC 104 wherein it is observed:
“24. A right to cross – examine a witness, apart from being a
natural right is a statutory right. S.137 of the Evidence Act
provides for examination – in- chief, cross – examination and re –
examination. Section 138 of the Evidence Act confers a right on
the adverse party to cross – examine a witness who had been
examined -in- chief, subject of course to expression of his desire
to the said effect. But indisputably such an opportunity is to be
granted. An accused has not only a valuable right to represent
himself, he has also the right to be informed thereabout. If an
exception is to be carved out, the statute must say so expressly or
the same must be capable of being inferred by necessary
implication. There are statutes like the Extradition Act, 1962
which excludes taking of evidence vis – ‘ – vis opinion.”
(Emphasis Supplied)
19. The decisions of the Apex Court are binding on this
court by virtue of Article 141 of the Constitution and in such
circumstances, the strenuous arguments advanced by the learned
Additional Public Prosecutor and the learned counsel for PW11
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based on the dictum in Harvinder (supra), cannot be accepted.
20. A reading of the various statements of PW11,
beginning from the earliest version, that is, the FIS/FIR till her
testimony before the Court reveals progressive and material
alterations at successive stages. In Exhibit PW11/A FIS recorded
on 01.06.2013, she alleged that A1 had forcibly taken her in a
Santro car and that all three accused persons committed gang rape
on her in a godown. In this version, there is no disclosure of any
prior relationship, acquaintance, or consensual intimacy with A1.
The narrative was of forcible abduction followed by non-
consensual penetrative sexual assault. A reading of the FIS/FIR
gives the impression that PW11 did know all the accused persons
as all of them are specifically named in the FIS. In Exhibit PW7/A
Section 164 statement, PW11 has specifically named A1 and A3.
But her case is that the third person present in the car was
unknown to her. She describes the third person in the car as a dark-
complexioned man. A2 has not been named in her Section 164
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statement. No Test Identification Parade (TIP) was conducted. So,
how was A2 identified?
21. When PW11 entered the witness box and her
examination-in-chief was recorded on 19.11.2013, she once again
categorically deposed that all the three accused persons had
committed gang rape upon her after taking her to the warehouse.
She identified them in court. However, a marked shift appears in
her cross-examination dated 06.02.2014, where she admitted that
she knew A1 prior to the incident. The departure became even
more pronounced in her cross-examination dated 04.06.2014,
wherein she admitted that she had friendship with A1 and had
physical relations with him earlier. She further stated that the
complaint had been lodged because she was afraid of her father.
This admission substantially diluted the earlier portrayal of
complete absence of prior relationship and directly affected the
prosecution’s case on consent and genesis. In further cross-
examination dated 18.07.2014, she admitted that it was dark at the
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godown and that she could not properly see the other two persons.
She also conceded that no TIP was conducted and that she had
identified the accused persons in the police station. These
admissions assume significance in view of the prosecution case
that all the three accused persons acted conjointly and were clearly
identified at the time of the occurrence.
22. Thereafter, when recalled and re-examined on
28.10.2014, PW11 attempted to explain her earlier statements by
attributing them to fear, threats and pressure, saying that she had
been instructed what to depose and that she was under fear, threat,
etc. at different points of time. Thus, the re-examination introduced
yet another version explaining away prior admissions, resulting in
multiple and mutually inconsistent narratives regarding prior
relationship, voluntariness, identification and the circumstances in
which the complaint came to be lodged. The cumulative effect of
these sequential deviations, from the FIS/FIR, to the Section 164
statement, to the examination-in-chief, to the multiple cross-
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examinations, and finally to re-examination, demonstrates not
mere minor discrepancies but substantive oscillation on material
particulars touching the credibility of the witness and, more
importantly, the core issue of consent. The testimony of PW11
while she was cross-examined again after the re-examination is
also important. She then admitted that she was under no fear or
threat on that day. She admitted that she had changed her stand
during her examination in chief, cross-examination, and re-
examination. She admitted that in the night of 31.05.2013, Anwar
(A1) had received a call from her mother while she was with him.
She also admitted that in her re-examination conducted on
16.10.2014, she had deposed falsely that it was because of fear and
threats, that she had been compelled to change her version in the
cross-examination conducted on 04.06.2014 and 18.07.2014. She
also admitted that it was out of fear of her father she had given the
version as revealed in her 164 statement, examination- in- chief
and re-examination. She also admitted that had she not been under
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fear of her father, she would not have deposed against the accused
persons.
23. The learned Prosecutor and the learned counsel for the
victim then argued that the case of PW11 that, she had been gang
raped was never challenged or cross-examined by the accused
persons. Even assuming that PW11 had consensual relations with
A1, that would not exonerate A2 and A3 because the version of
PW11 that she was raped by the latter was never challenged. I am
afraid, I am unable to accept this argument also. PW11 has no case
that while she and A1 were having a consensual relationship, A2
and A3 had barged in and forced themselves on her. She has never
such a case. Therefore, if the argument is accepted, this court
would be developing a case for PW11 which she herself does not
have.
24. As regards medical evidence, the MLC records no
external or internal injuries on the genital area and no signs
suggestive of force. While it is true that absence of injury is not
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conclusive, in a case alleging gang rape by three adult males,
complete absence of injury assumes relevance, particularly when
the testimony of the prosecutrix itself is not wholly consistent. The
principle enunciated in Lalli Ram v. State of Madhya Pradesh
(2008) 10 SCC 69, though rendered in the context of Section
376(2)(g) IPC, remains instructive that where the version of the
prosecutrix is self-contradictory and inconsistent with medical
evidence, conviction cannot rest solely upon such testimony
without corroboration.
25. Exhibit PW18/PX1 FSL Report indicates that alleles
from the blood samples of the accused were accounted for in the
allelic data obtained from the underwear of PW11. Referring to the
scientific evidence it was submitted that the same corroborates the
prosecution version. According to the learned prosecutor, even if
the testimony of PW11 is not of sterling quality, this court cannot
completely discard her testimony. In such circumstances, the court
can look into the other pieces of evidence for corroboration. The
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scientific evidence clearly shows that all the accused persons did
have sexual intercourse with PW11. It was also submitted that
scientific evidence alone can form the basis of conviction.
26. In this context, I refer to the following dictums of the
Apex Court – In Ishwari Prasad Misra v. Mohammad Isa, 1963
(3) SCR 722, it was observed;
“Evidence given by expert can never be conclusive, because
after all it is opinion evidence”, a statement which carries us
nowhere on the question now under consideration. Nor, can
the statement be disputed because it is not so provided by the
Evidence Act and, on the contrary, S. 46 expressly makes
opinion evidence challengeable by facts, otherwise
irrelevant. And as Lord President Cooper observed in Davis
v. Edinburgh Magistrate: “The parties have invoked the
decision of a judicial tribunal and not an oracular
pronouncement by an expert”.
(Emphasis Supplied)
26.1. In Magan Bihari Lal v. State of Punjab, AIR 1977
SC 1091it has been held thus-
“… It is now well settled that expert opinion must always be
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caution than the opinion of a handwriting expert. There is a
profusion of precedential authority which holds that it is
unsafe to base a conviction solely on expert opinion without
substantial corroboration. This rule has been universally
acted upon and it has almost become a rule of law.”
(Emphasis Supplied)
26.2. Murari Lal v. State of M.P. 1980 (1) SCC 704, the
Apex Court while laying down the principles with regard to the
extent to which reliance can be placed on the evidence of an expert
witness and when corroboration of such evidence may be sought,
opined thus-
“4. We will first consider the argument, a stale argument
often heard, particularly in Criminal Courts, that the opinion
– evidence of a handwriting expert should not be acted upon
without substantial corroboration. We shall presently point
out how the argument cannot be justified on principle or
precedent. We begin with the observation that the expert is
no accomplice. There is no justification for condemning his
opinion – evidence to the same class of evidence as that of an
accomplice and insist upon corroboration. True, it has
occasionally been said on very high authority that it would
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of any expert, handwriting expert or any other kind of
expert, is not because experts, in general, are unreliable
witnesses – the quality of credibility or incredibility being one
which an expert shares with all other witnesses – but because
all human judgment is fallible and an expert may go wrong
because of some defect of observation, some error of
premises or honest mistake of conclusion. The more
developed and the more perfect a science, the less the chance
of an incorrect opinion and the converse if the science is less
developed and imperfect. The science of identification of
finger – prints has attained near perfection and the risk of an
incorrect opinion is practically non – existent. On the other
hand, the science of identification of handwriting is not
nearly so perfect and the risk is, therefore, higher. But that is
a far cry from doubting the opinion of a handwriting expert
as an invariable rule and insisting upon substantial
corroboration in every case, howsoever the opinion may be
backed by the soundest of reasons. It is hardly fair to an
expert to view his opinion with an initial suspicion and to
treat him as an inferior sort of witness. His opinion has to be
tested by the acceptability of the reasons given by him. An
expert deposes and not decides……”
(Emphasis Supplied)
27. When the attention of the learned Additional Public
Prosecutor was drawn to the aforesaid decisions, it was submitted
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that the Apex court in those cases was considering the report of a
handwriting expert, which science is not 100 % correct. On the
other hand, the result of a DNA examination is 99.99 % correct
and therefore, there is no reason to disbelieve the report of the
expert.
28. Here again, I disagree with the argument advanced by
the learned Additional Public Prosecutor. In Murari Lal (supra)
the Apex court has cautioned and pointed out the hazard in
accepting the opinion of any expert, handwriting expert or any
kind of expert (without corroboration) by pointing out that it’s not
because they are unreliable witnesses but, because all human
judgment is fallible and an expert may also go wrong because of
some defect of observation, some error of premises or honest
mistake of conclusion. Moreover, the mere fact that the accused
persons had sexual intercourse with PW11 is not sufficient to
prove the offence charged against them. PW11 was admittedly, a
major at the time of the incident. Therefore, the question of
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consent assumes great significance. The trial court disbelieved the
case of kidnapping of PW11 on the ground that it was possible that
PW11 had gone on her own accord. The testimony of PW11
certainly raises doubts about the case of gang rape. It seems that
PW11 went on her own accord. Her father found out about the
same. PW11 also speaks of her father berating her by accusing her
of spoiling the family’s honour. In such circumstances under
compulsion of the father, the complaint seems to have been lodged
with the police. Such a possibility also cannot be ruled out.
29. In criminal jurisprudence, if two views are possible, the
one favouring the accused must be adopted. In the present case, the
evidence does not exclude the possibility of consensual intercourse.
The prosecution has failed to establish, beyond reasonable doubt, the
offence punishable under Section 376D IPC.
30. The finding of the trial court that there are only minor
inconsistencies in the testimony of PW11 is apparently incorrect.
On overall re-appreciation of the evidence, this Court is of the
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considered view that the trial court went wrong in convicting the
appellants on the basis of the aforesaid unsatisfactory evidence.
Hence, an interference into the impugned judgement is called for.
31. In the result, the appeals are allowed and the impugned
judgment of conviction and order on sentence are set aside. The
appellants (A1 to A3) are acquitted under Section 235(1) Cr.P.C.
of the charge under Section 376D IPC. They are set at liberty and
their respective bail bonds shall stand cancelled.
32. Application(s), if any, pending, shall stand closed.
33. Copy of this judgment be placed in all the connected
matters.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 10, 2026
Mj
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