Penetration proof enough to establish rape, says Delhi HC

The court awarded 20-year jail term to two men for raping a foreign national.

The Delhi High Court has awarded 20 years imprisonment to two men for gang-raping a Nigerian woman in 2014, saying mere absence of traces of semen during the DNA analysis does not falsify the victim's claim and penetration was sufficient to prove the offence of rape.

The high court modified the jail term of the two men from 30 years to 20 years noting that one of them was unmarried while the other has to look after his children and parents, and the possibility of their reformation cannot be ruled out.

The judgment is among the 65 delivered by separate division benches headed by Justice Mukta Gupta on Monday, a day before her retirement. She is retiring from the Delhi High Court on Tuesday after a 14-year stint as a judge. She was appointed to the Delhi High Court as an additional judge on October 23, 2009 and confirmed as a permanent judge on May 29, 2014.

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The high court disposed of the appeal filed by convicts Raj Kumar and Dinesh challenging the trial court’s verdict convicting and sentencing them to 30 years in jail for gang-rape.

“Considering the evidence on record and that the version of the prosecutrix (victim) is not only wholly reliable but is also supported by other facts and circumstances, lending a further assurance to her version, this court finds no error in the impugned judgment of conviction,” a bench of Justices Mukta Gupta and Poonam A Bamba said.

The incident took place on the intervening night of June 18-19, 2014 when the woman, a Nigerian national, was returning from a friend’s party at the District Centre in Janakpuri. While she was looking for an auto, a car stopped near her and the two accused bundled her into the vehicle.

They took her to a house and raped her. After committing the crime, they put her back into the car and dumped her near a metro pillar. The two also took away her bag containing valuables.

Thereafter, the woman went to a police station and lodged a complaint.

On the basis of the description of the house given by the woman, the two men were arrested.

The counsel for the convicts challenged the trial court’s verdict, claiming it was a case of mistaken identity and they were convicted of an offence they had not committed.

The second ground on which the woman's testimony was challenged was that the DNA analysis report did not corroborate her claim about the two men having raped her.

However, the court said the absence of semen traces does not falsify the victim's claim that she was raped by the two men one after another. “For an offence of rape, it is sufficient to prove that there was penetration,” the court said.

Upholding the trial court’s judgment, the high court said from the woman’s deposition, it was evident that she was kidnapped by the two appellants at around 11 pm when she was looking for an autorickshaw.

“She was pulled inside the car and thus, she would not have noted the car number and could not have identified the car as it would have taken a few seconds or few minutes for the kidnappers to have kidnapped the prosecutrix, giving her no time to see the car number or details of the car.

“Further, while taking the route to the place where she was raped at night, it would have been difficult for a person who is not an ordinary resident, to identify the roads, which is further compounded by the fact that as per the prosecutrix, her head was bowed down in the car so that nobody could see her,” it noted.