Delhi District Court
State vs Vijay Raj Kaushal on 3 July, 2007
-:1:-
IN THE COURT OF SH. NARINDER KUMAR,
ADDL. SESSIONS JUDGE, FAST TRACK COURTS
ROHINI : DELHI
SC No. 12 dated 23-01-2007
Date of Decision: 03-07-2007
STATE
Versus
1. Vijay Raj Kaushal
S/o Sh. Bhanwar Lal Kaushal
R/o MS 29, MS Block,
Hari Nagar, Delhi.
2. Jugal Kishore
S/o Sh. Hakumat Rai Chaudhary
R/o BL-12, L-Block,
Hari Nagar, Delhi.
FIR No. 388/1999
PS Hari Nagar
U/s. 328, 376, 506, 342, 354, 323 IPC
JUDGMENT
First the Facts Vijay Raj Kaushal (accused), employee of Partap Engineering Company, was living in three rooms of house no. B-45, Hari Nagar, New Delhi. Three rooms of the said house had been let out by Sh. B. D. Khantuwal, to Sh. Nand Lal, -:2:- owner of the aforesaid Engineering Company. The prosecutrix is daughter of the landlord. She used to run Theatre School in a room of the said house.
Vijay Raj Kaushal (accused) is alleged to have administered some stupefying things to the prosecutrix during the period from the night intervening 18/19-12-1998 to 26/05/1999 with intent to facilitate commission of rape on her. During the aforesaid period, he is alleged to have committed rape on the prosecutrix several times. He is also alleged to have criminally intimidated the prosecutrx to kill her brother in case she disclosed any fact.
Jugal Kishore (the other accused) is alleged to have wrongfully confined the prosecutrix and her mother in the aforesaid tenanted premises on 26/05/1999. He is also alleged to have assaulted/used criminal force against prosecutrix with intent to outrage her modesty. Another allegation levelled against him is that he voluntarily caused hurt to the brother of the prosecutrix on the aforesaid date. Case is Registered Present case was registered on the statement made by the prosecutrix before police of Police Station Hari Nagar on 26-05-1999 wherein she levelled allegations -:3:- against Vijay Raj Kaushal accused of having committed rape on her after administering some stupefying substance on the night intervening 18/19-12-1998 and from that night to 26-05-1999 in the tenanted portion of their house. She also levelled allegations therein, Vijay Raj Kaushal accused having criminally intimidated her with death of her brother. She also levelled allegations that on 26-05-1999 at about 12 noon, Vijay Raj Kaushal accused accompanied by his companion came to their house and thereafter gave beatings. PW Bharti and her husband Vipin Kumar are alleged to have reached the spot on 26-05-1999.
Investigation Starts After recording the statement of the prosecutrix, ASI Sanwar Mal sent her to Deen Dayal Hospital. Vijay Raj accused was also sent for medico legal examination.
SI Sandeep Kumar accompanied by lady constable Savita reached the spot and prepared rough site plan of the place of occurrence. The prosecutrix was medico legally examined. Vijay Raj accused was also medico legally examined. One sealed parcel and sample seal were delivered by the doctor to the police and the same were ultimately taken into possession by the investigating officer. -:4:- Constable Prem Pal also collected sealed parcel from the doctors pertaining to semen sample of Vijay Raj Kaushal accused, which on the same day came to be handed over to duty officer Ct. Ramesh. The sealed parcels were ultimately sent to CFSL Malviya Nagar. Accused persons were arrested. Reports were collected from Forensic Science Laboratory.
On completion of investigation, challan was put in court.
Charge
Copies of documents relied upon by the
prosecution were supplied to the accused persons.
Prima facie case having been made out, charge for offences under section 328, 376, 506 IPC was framed against Vijay Raj Kaushal, whereas charge for offences u/s 345, 354, 323 IPC was framed against Jugal Kishore accused on 23/03/2001. Since accused perosns pleaded not guilty and claimed trial, prosecution was called upon to lead evidence.
Prosecution Evidence In order to prove its case, prosecution examined fourteen witnesses:
-:5:-
Prosecutrix has stepped into the witness box as PW-8; her mother as PW-5; her sister in law Bharti as PW11; and her brother Vipin Kumar as PW-12.
PW-3 Head Ct. Hari Om has been examined to prove FIR Ex.PW-3/A on the basis of ruqqa Ex.PW-1/2 received at Police Station Hari Nagar on 26/05/1999 at about 06:40 p.m. Medical evidence is available in the statements of PW-12 Dr. Monika Suri; PW-10 Sh. J. C. Vashisht, Record Clerk.
PW-1 ASI Sanwar Mal, PW-2 Ct. Krishan Avtar, PW-4 Ct. Prem Pal, PW-6 ASI Savita, PW-7 Ct. Bhanu Parkash, PW-9 Ct. Ajay Kumar, PW-14 SI Sandeep Kumar, have been examined to prove the investigation part of prosecution story.
Defence Evidence When examined U/s. 313 Cr.P.C., Vijay Raj Kaushal accused admitted the factum of tenancy of three rooms situated on the ground floor to Nand Kishore of Partap Engineering Works by father of the prosecutrix. He also admitted that prosecutrix and her parents were residing at the first floor of the same house. He further admitted that he was -:6:- living in the tenanted room as an employee of the Company of Nand Kishore. However, he denied all other incriminating circumstances appearing in evidence against him except that he and the proseuctrix were subjected to medico legal examination.
Defence plea put forth by Vijay Raj accused as under:
I have been falsely implicated.
Actually the landlord wanted that I should vacate the tenanted portion. The prosecutrix had been using my telephone and also demanding money from me. Ultimately I did not allow the prosecutrix to use my telephone. I also refuse her to give any money. Accordingly I was falsely implicated.
Jugal Kishore accused also admitted the factum of tenancy of Partap Engineering Works in respect of three rooms on the ground floor of the house but displayed ignorance against allegations levelled his co-accused. As regards the occurrence dated 26-05-1999, the he denied the allegations levelled against him. However, he admitted factum of arrival of the police at the spot where he, his co- accused Vijay Raj Kaushal, the prosecutrix, her mother and -:7:- her brother were present at that time. He also admitted that the police sent Vijay Raj Kaushal accused and prosecutrix to DDU hospital for medico legal examination. Then he admitted the factum of his arrest on 31/05/1999.
Defence plea put forth by Jugal Kishore accused is as under:
"I have been falsely implicated. It was for the first time i.e on 26/5/99 that I visited Partap Engg. Works to make payment. On reaching there, I noticed that quarrel was going on between Vijay Raj accused on the one hand and Vipin and her mother on the other hand. I tried to separate and pacify the parties. That is how I have been falsely implicated."
Arguments heard. File perused.
As per prosecution version, as noticed above, Vijay Raj Kaushal (accused) was living on the ground floor of house no. B-45, Hari Nagar, Delhi, while he was an employee of Sh. Nand Lal Kaushal of Partap Engineering Company, the said portion having been let out to Sh. Nand Lal Kaushal by PW-5 Smt. S. B. Khantoowal, mother of the prosecutrix. PW-5 has deposed about letting out of three rooms and a kitchen on the ground floor of her house B-45, -:8:- Hari Nagar, Delhi to Partap Engineering Company, owned by Sh. Nand Lal Kaushal. She further deposed that Vijay Raj Kaushal (accused), an employee of aforesaid Nand Lal Kansal, used to live in two rooms. In his statement recorded u/s 161 Cr.P.C. , Vijay Raj Kausal accused has admitted that three rooms situated on the ground floor of the house of the mother of prosecutrix were let out to Nand Lal of Partap Engineering Works and he was living as a tenant there, on behalf of the company, for the last 2- 2½ years.
According to PW-5 mother of the prosecutrix - her daughter (the prosecutrix) usedt o run a theatre school in one of the aforesaid three tenanted rooms. It is in the statement of the prosecutrix that she and her other family members used to reside on the first floor of the house No. B-45, Hari Nagar, Delhi, whereas Vijay Raj Kaushal accused used to reside in the tenanted portion i.e. on the ground floor on behalf of the Company. It is also in her statement that she used to study in the study room situated on the ground floor of the house. PW-11 Smt. Bharti, sister in law of the prosecutrix too deposed that there were four room on the ground floor of house no. B-45, Hari Nagar, Delhi, out of which three rooms were with Vijay Raj Kaushal accused -:9:- whereas the fourth room was used by the prosecutrix. It is also in the statement of PW-12, brother of the prosecutrix that his sister used to reside on the first floor but she also occupied the room on the ground floor where she used to study.
Present case was registered on the statement Ex.PW1/1 made by the prosecutrix before the police of Police Station Hari Nagar on 26/05/299 at about 06:25 p.m. In her statement Ex.PW1/1, the prosecutrix levelled allegations that Vijay Raj Kaushal, the accused firstly raped her on the night intervening 18/19-12-1998; that thereafter two-three times again he raped her; that on 22/02/1999 on the date of her birthday, Vijay Raj Kaushal accused once again ravished her.
While appearing in court as PW-8, the prosecutrix deposed that for the first time Vijay Raj (accused) raped her on the night intervening 28/29-12-1998; that Vijay Raj Kaushal accused committed rape on her two - three times even thereafter on different dates; that on 22/02/1999, Vijay Raj Kaushal accused subjected her to rape.
As noticed above, in her statement Ex.PW1/1, prosecution alleged that she was ravished on the night intervening 18/19-12-1998. But while appearing in court, she -:10:- deposed that for the first time she was raped on 28/29-12- 1998. In all from December 1998 till 22/02/1999, she is alleged to have been raped by the accused five-six times but matter was reported to the police only on 26/05/1999. Thus, there is delay in reporting of matter to the police. It is well settled that mere delay in lodging First Information Report is not always fatal to the case of prosecution but late reporting of the matter to the police is relevant fact to be taken note of by the court while evaluating the evidence led by the prosecution. In this respect, court has to consider all the facts and circumstances of the case. After considering all the facts and circumstances and evaluating the evidence, in case court comes to the conclusion that delay stands sufficiently explained, then no adverse inference is to be drawn against the prosecution. However, when the court is satisfied that prosecution has failed to explain delay in reporting of matter to the police, the unexplained delay adversely affects the case of prosecution.
It is well settled that delay results in embellishment which is creature of afterthought. Bereft of advantage of spontaneity, danger creeps in of an introduction of concocted version, exaggerated account as a result of -:11:- deliberation and consultation. Thus, delay should be satisfactorily explained. In this respect reference is made to law laid down in AIR 1973, Supreme Court 501.
In State of Karnataka v. Mapilla P.P.Soopi, AIR 2004 SC 85, Hon'ble Apex Court observed that unexplained delay in lodging complaint with the police contributes to the doubt in the prosecution version.
Reference has been made by learned defence counsel, in this context to the decision in Ram Dass & Ors. Vs. State of Maharashtra, 2006 (4) RCR (Crl) 967.
Now it is to be seen whether in this case prosecution has been able to explain the delay in reporting of matter to the police. While appreciating evidence led by the prosecution, on this aspect, I find that prosecution has miserably failed to explain delay in reporting of the matter to the police. For the first time, Vijay Raj Kaushal accused is stated to have committed rape on the prosecutrix in December 1998. It was for the prosecutrix to raise hue and cry, in case of commission of rape, at the commission of such an offence so as to attract other members of her family who were putting up on the first floor of the same house. In this regard she put forth explanation that there was no -:12:- question of raising any alarm as she was unconscious and that she realised about commission of rape only in the morning. Prosecutrix admitted in her cross examination to have informed her family members about the incident which took place in December, 1998. As regards the version put forth by her that she had become unconscious, in her chief examination she stated that on that night at about 9 p.m., while she was present in her study room, Vijay Raj Kaushal brought Gajar ka Halwa in a Katori and offered to her, stating that he had himself prepared it. According to the prosecutrix, she was not inclined to eat Gajar ka Halwa and she reported to the accused that she had already taken dinner, but she took the same when the accused insisted and told her that she should not show disrespect to the dish. She further stated that she ate Gajar ka Halwa to satisfy the feelings of Vijay Raj Kaushal accused, but after sometime she started feeling giddiness and became unconscious. However, there is nothing on record to suggest that the prosecutrix even in the morning told any of her family members as to what had happened on the previous night. PW-5 - mother of the prosecutrix, PW-11 sister in law and PW-12 brother of the prosecutrix nowhere deposed that the prosecutrix apprised -:13:- anyone of them of the incident which took place on the night of 18/19th - 28/29th December, 1998. It is in the statement of the prosecutrix that Vijay Raj Kaushal accused threatened her to finish her brother on his way from and to the Airport and as such she did not disclose the factum of incident to anyone. It is not case of prosecution that brother of the prosecutrix was younger to her. During the days of occurrence, the prosecutrix was about 27 years of age, whereas her brother was about 33 years of age. PW12 brother of the prosecutrix was serving in Indian Airlines and his duty hours were from 5 a.m. to 12:30 p.m. as is available from the statement of PW-11 sister in law of the prosecutrix. According to PW12 himself, his duty hours were from 5 a.m. to 2 p.m. In the given facts and circumstances of the case, this court is not satisfied with the explanation put forth by the prosecution in not reporting the matter to the police about incident of December, 1998, without delay.
As noticed above, the prosecutrix is stated to have been raped two-three times after the incident of December, 1998. But the prosecutrix has not given any date or time of the commission of rape on her so as to specify as to when and at what time and place Vijay Raj Kaushal -:14:- accused ravished her. In this respect, she simply deposed that like the previous incident, which took place on the night intervening on 28/29-12-1998, Vijay Raj Kaushal accused committed rape on her twice/thrice on different dates and that before committing rape, he used to serve her either Kheer or Gaja ka Halwa or some Rajasthani dish. But she used to realise later on that something had been mixed in those dishes.
There is nothing in the statement of the prosecutrix that she brought to the notice of any of her family members or to the police the factum of commission of rape on her person twice or thrice on different dates. When Vijay Raj Kaushal accused is stated to have committed rape on her on 28/29-12-1998 after serving her Gaja ka Halwa, it is not probable that on any subsequent day/date she would have permitted Vijay Raj Kaushal accused to enter her study room. In the given facts and circumstances, the prosecutrix would have stopped going to the study room on the ground floor. Rather she would have preferred to stay/remain on the first floor and such a conduct would have made her family members wiser to know from her as to why she had stopped going to the ground floor for study purpose. But the -:15:- prosecution wants the court to believe that even after commission of rape on her by Vijay Raj Kaushal accused, she continued study in the room on the ground floor where Vijay Raj Kaushal still used to reside in the other three rooms. But in the given facts and circumstances, the version put forth by the prosecution that Vijay Raj Kaushal used to rape her twice / thrice after the first incident in December 1998 is highly unbelievable.
Then there is incident of 22/02/1999. As per prosecutrix, even on that date, Vijay Raj Kaushal raped her in her study room on the ground floor. At that time Vijay Raj Kaushal is alleged to have served 'Pullao' to the prosecutrix, before committing rape on her. But this version once again is not believable for the aforesaid reason. Firstly that on account of any previous incident of rape on her person, the prosecutrix would have stopped studying in or visiting her study room on the ground floor, when Vijay Raj Kaushal was still living in the other three rooms on the ground floor. Secondly, because of previous experience, if any, the prosecutrix would have not at all allowed Vijay Raj Kaushal accused to enter her study room. Rather she would have on one or the other day brought the matter to the notice of the -:16:- police or any of her family members and got the accused expelled from the tenanted portion. However, no such step was taken by the prosecutrix. She did not inform any of her family members. She also did not stop Vijay Raj Kaushal accused from entering her study room. There is nothing in her statement that she raised any alarm at the time he was going to enter her room on 22/02/1999 so as to attract her family members living on the first floor. All this makes the version narrated by the prosecutrix regarding commission of rape by Vijay Raj Kaushal accused highly doubtful.
According to the prosecutrix (PW8), on 22.02.99, when Vijay Raj Kaushal committed rape on her, she told him on the next day that she would disclose the same to her mother whereupon he replied that he was a man having high connections and in case she disclosed the same to anyone, he would kill her only brother and his children, and that the prosecutrix could not do any harm to him. According to the prosecutrix, Vijay Raj Kaushal accused then left for Jodhpur and she narrated the incident to her mother after a few days.
In this respect, when we advert to statement Ex.PW1/1 made by the prosecutrix before the police on 26.05.99 i.e. about three months thereafter, it would transpire -:17:- that therein the prosecutrix nowhere stated that she contacted Vijay Raj Kaushal accused on the next day of the commission of rape and told him that she was going to disclose the same to her mother. Therein, it stands recorded that on 22.02.99 Vijay Raj Kaushal accused forcibly served her "Pulao" and then committed rape on her and that she told him that he had exceeded all his limits and that he should run away otherwise she would disclose everything. In that statement made before the police, the prosecutrix nowhere stated that on the following day when she contacted Vijay Raj Kaushal accused, he threatened to kill her only brother and his children. Therein, she specifically stated to have apprised her mother of the occurrence about 10 days prior to the registration of this case. Mother of the prosecutrix, while appearing in court as PW5, deposed that on 17/18.05.99 her daughter told her that Vijay Raj Kaushal accused was forcibly keeping illicit relations with her and also threatened her that in case she disclosed this fact, her only brother would be killed, whereupon she accompanied by Rakesh went to Jodhpur to meet Nand Lal Kaushal, employer of Vijay Raj Kaushal accused. She further deposed that Nand Lal Kaushal replied that he would himself come and settle the -:18:- matter. In her cross examination, PW5 admitted that for the first time her daughter apprised her of illicit relations of the accused with her, on 17/18.05.99. Once this fact was brought by the prosecutrix to the notice of her mother, she would have at once, first of all, apprised her husband of the same and then immediately reported the matter to the police.
But, in this case, surprisingly, father of the prosecutrix has neither been cited as a prosecution witness nor examined in court as such, for the reasons best known to the prosecution. Furthermore, mother of the prosecutrix stated in her cross examination that she apprised her husband about illicit relations between her daughter and Vijay Raj Kaushal accused, on 26/27.05.99. There is no explanation in her statement as to why she did not tell her husband about this fact on 17/18.05.99, immediately after her daughter apprised her of this illicit relationship. PW5 admitted that her husband was residing in the same house with her. Non-disclosure of this fact by PW5 to her husband further creates a doubt in the version narrated by the prosecution witnesses. The fact remains that prosecution has even failed to explain delay in reporting of the matter to the police soon after 17/18.05.99, when the prosecutrix allegedly apprised her mother of the -:19:- illicit relations. Furthermore, there is nothing in the statement of PW5 that her daughter told her that on 22.02.99 Vijay Raj Kaushal accused did commit rape on her daughter or this fact was disclosed to her by her daughter.
PW11 Smt. Bharti, sister in law of the prosecutrix, admitted in her cross examination to have not told the police about commission of rape on the prosecutrix. There is nothing in the statement of PW12, brother of the prosecutrix, that the prosecutrix ever apprised him of any incident of rape on her by Vijay Raj Kaushal accused.
PW5-mother of the prosecutrix deposed in court to have gone to Jodhpur and met Nand Lal Kaushal, after she came to know from her daughter that Vijay Raj Kaushal accused was keeping illicit relations with her. In the given facts and circumstances, statement of Nand Lal Kaushal was of much significance so as to corroborate the version narrated by the prosecutrix and her mother. However, a perusal of record would reveal that neither Nand Lal Kaushal was cited as a witness nor examined in court as such. Thus, there is no corroboration to the statement of PW5 that she went to Jodhpur and met Nand Lal Kaushal or apprised him of the illicit relations between her daughter and Vijay Raj -:20:- Kaushal accused, employee of said Nand Lal Kaushal.
In view of the above discussion, this Court comes to the conclusion that prosecution has failed to establish that Vijay Raj Kaushal (accused) did commit rape on the prosecutrix either on the night intervening 18/19 or 29/29.12.98, or on 22.02.99 or during the period from December, 1998 to 22.02.99, as rightly argued by learned defence counsel.
Occurrence dated 26/05/99:
Case of prosecution, as noticed above, is that on 26.05.99 at about 12 Noon, Vijay Raj Kaushal accused accompanied by another came to the house of the prosecutrix, while she and her mother were present there;
that Vijay Raj Kaushal accused and his companion took the prosecutrix and her mother to the tenanted portion situated on the ground floor, saying that they would talk there, but, on reaching there, they closed the doors and gave them beatings; that both of them then asked them to remove their clothes; that both of them then caught hold of the prosecutrix from her clothes, but she raised alarm which led to arrival of Smt. Bharti, sister in law of the prosecutrix, and she saved them; that Vipin, brother of the prosecutrix, also reached -:21:- home but Vijay Raj Kaushal and his companion gave him beatings as well.
While appearing in court as PW8, the prosecutrix deposed that on 26.05.99 when she returned to her house from the market, accompanied by her nephew, she found Vijay Raj Kaushal (accused ) present in their house with an elderly person. She further stated in court that on seeing her, Vijay Raj Kaushal (accused) told her and her mother that he would talk about the matter on the ground floor and thereafter she, her mother, Vijay Raj Kaushal (accused) and his companion came to the room situated on the ground floor. She further stated that Vijay Raj Kaushal accused shouted at her mother saying as to why she had gone to Jodhpur to make complaint against him. It is also in her statement that at that time, she (prosecutrix) brought her shirt, which Vijay Raj Kaushal accused had torn, at the time he committed rape on her, for the first time. At that time, the companion of Vijay Raj Kaushal accused told that he could not do anything in the matter. At this moment, a Sikh gentleman, equipped with a Kripan, entered their house, as further stated by the prosecutrix. The Sikh gentleman was accompanied by another,namely, Jugal Kishore (accused). According to the -:22:- prosecutrix, the Sikh gentleman was also visiting Vijay Raj Kaushal accused even earlier. As further stated by the prosecutrix, Vijay Raj Kaushal accused then shouted and asked his companions to remove her clothes (of the prosecutrix) and to commit rape on her so that she could not raise voice in future and thereafter he ( Vijay Raj Kaushal ) and the elderly person, referred to above, started giving beatings to the prosecutrix and her mother. The prosecutrix further stated that her sister in law Smt. Bharti reached there and rescued them. Vijay Raj Kaushal accused also pulled shirt of the prosecutrix.
As noticed above, while appearing in court, the prosecutrix stated about presence of a Sikh gentleman who entered the portion which was under tenancy of Vijay Raj Kaushal accused. She also deposed about presence of Jugal Kishore (accused) in the company of said Sikh gentleman. Thus, according to the version narrated by her, there were four persons in all from the opposite side, meaning thereby that Vijay Raj Kaushal (accused) and Jugal Kishore (accused) were accompanied by one elderly person and a Sikh gentleman, at the time of occurrence dated 26.05.99, while the prosecutrix was accompanied by her -:23:- mother. However, a perusal of her statement Ex. PW1/1 would reveal that therein the prosecutrix did not state before the police that Vijay Raj Kaushal accused was accompanied by an elderly person or that a Sikh gentleman accompanied by Jugal Kishore (accused) also reached there lateron. Therein, she stated about presence of Vijay Raj Kaushal (accused) and his companion. No particulars of the companion accompanying Vijay Raj Kaushal accused were got recorded by the prosecutrix, while making statement Ex. PW1/1. Therein, she also did not state about arrival of Sikh gentleman accompanied by Jugal Kishore (accused). It also does not stand recorded therein that the companion of Vijay Raj Kaushal (accused) was an elderly person. The fact remains that the prosecutrix, while making statement in court, made improvements on these material aspects i.e. regarding identity of the companion of Vijay Raj Kaushal accused and regarding arrival of a Sikh gentleman alongwith another, while she and her mother were present on the ground floor with Vijay Raj Kaushal and his companion.
In her cross examination PW8-prosecutrix admitted to have not named Jugal Kishore (accused) before the police but she stated therein that Jugal Kishore (accused) -:24:- is the person who had come to their house on 26.05.99 and given beatings to her and her mother at the instance of Vijay Raj Kaushal accused after having come there in his company. In the given circumstances when identifying mark of companion of Vijay Raj Kaushal accused was not got recorded by the prosecutrix in her statement Ex. PW1/1, it was for the investigating officer to arrange for test identification proceedings so as to establish his identity. It was also for the investigating officer to take steps to establish identity of the Sikh gentleman and the elderly person, who were allegedly present there at the time of occurrence dated 26.05.99. However, no such step appears to have been taken by the investigating officer.
PW-1 ASI Sanwar Mal accompanied by PW-2 Ct. Krishan Avtar reached the spot on 26/05/1999 at about 1 p.m. on receiving the DD No.14-A and found several persons present there who, on inquiry, told about quarrel. According to PW1, he prepared injury statement of PW Vipin Kumar, PW Smt. S. B. Khantoowal, prosecutrix and Vijay Raj Kaushal (accused) and sent all of them to DDU hospital for their medico legal examination, in the company of the constable. PW-1 did not state about presence of Jugal -:25:- Kishore accused at the spot at the time he accompanied by Constable Krishan Avtar reached the spot, at 1 p.m. Had Jugal Kishore been present at the given time, PW-1 must have deposed about his presence, while making statement in court. Ruqqa Ex.PW-1/2 is stated to have been appended by PW-1 Sanwar Mal to the statement of the prosecutrix at 06:25 p.m. and this ruqqa led to registration of this case at 06:40 p.m. In ruqqa Ex.PW-1/2 name of Jugal Kishore also stands recorded. As per contents of ruqqa, PW Sanwar Mal prepared injury statement of Jugal Kishore as well. But as noticed above while appearing in court, PW-1 did not state about presence of or preparation of injury statement of Jugal Kishore. Prosecution has not place on record any injury statement of Jugal Kishore, stated to have been prepared by ASI Sanwar Mal before his medico legal examination alongwith others. Even no medico legal report of Jugal Kishore accused has been placed on record. All this goes to show that Jugal Kishore was not present on the given date, time and place i.e. 26/05/1999 at about 12 noon at house no. B-45, Hari Nagar, Delhi. A perusal of report u/s 173 Cr.P.C. would reveal that in these documents, the SHO recorded that Vijay Raj Kaushal and one Joginder Singh -:26:- were arrayed as accused. In column no. 4 of the report u/s 173 Cr.P.C., fluid has been applied over the name of accused no. 2 and thereafter name of Jugal Kishore has been written. However, as noticed above, in the body of the report, name of Joginder Singh stands recorded as the other accused. It was for the prosecution to explain as to how name of Joginder Singh came to be mentioned in the body of the report u/s 173 Cr.P.C. and as to what led to applying of fluid in column no.4 of the report so as to overwrite name of Jugal Kishore. However, there is no explanation in this respect from the prosecution, which further makes the case of prosecution doubtful regarding occurrence dated 26/05/1999.
PW-5 - mother of the prosecutrix deposed that on 26/05/1999, Vijay Raj Kaushal accused accompanied by other came to his house at about 11 a.m. and asked her to come down i.e to the ground floor saying that he wanted to some talk to her, whereupon she came down in the company of her daughter - the prosecutrix. She further deposed that Vijay Raj Kaushal and his companions started tearing clothes which her daughter was wearing. Further, according to PW-5 she raised alarm whereupon Smt. Bharti, her daughter in law, -:27:- came down from the first floor and rescued her daughter. She identified Jugal Kishore as the companion of Vijay Raj Kaushal accused. It is in her statement that Jugal Kishore is father of Vijay Raj Kaushal accused. This version narrated by PW-5 is not in consonance with the prosecution version. Vijay Raj Kaushal is not the father of Jugal Kishore, the latter being son of Hukumat Rai. Therefore, the statement of PW- 5 to the effect that Jugal Kishore was accompanying Vijay Raj Kaushal accused cannot be accepted, her version being highly doubtful.
As per version narrated by the prosecutrix, Vijay Raj Kaushal shouted at her mother saying as to why she had gone to Jodhpur to make complaint against him. However, PW5 mother of the prosecutrix nowhere stated that Vijay Raj Kaushal shouted at her saying any such words or opposing her visit to Jodhpur.
As noticed above, according to the prosecutrix (PW-8) at the time Vijay Raj Kaushal accused came to their house, he was accompanied by an elderly person and not by Jugal Kishore. On the other hand, PW-5 mother of the prosecutrix had stated that Vijay Raj Kaushal accused was accompanied by his co accused Jugal Kishore. -:28:-
As per version narrated by the prosecutrix in court, one Sikh gentleman accompanied by Jugal Kishore accused entered the house while all of them were present on the ground floor. However, PW5 mother of the prosecutrix did not state so while making statement in court. Had any Sikh gentleman or any elder person been present at their house, on 26/05/1999, Pw5 would not have omitted to state so in her statement made in court.
Prosecutrix stated in court that Vijay Raj Kaushal accused instigated his companions to remove her clothes and to commit rape on her so that her voice can be crushed. However, PW5 - mother of the prosecutrix nowhere stated that Vijay Raj Kaushal accused so instigated any of his three companions.
The above noticed contradictions in the statements of the two witnesses are material in nature and cannot be thrown away.
PW-11 Smt. Bharti, sister in law of prosecutrix and daughter in law of PW-5, while deposing regarding the occurrence dated 26/05/1999 stated that on that date at about 11 a.m. Vijay Raj Kaushal accused alongwith one of his friend came to their house and that she came to know -:29:- from her mother in law that the companions of Vijay Raj Kaushal accused was Jugal Kishore accused. She further deposed that Vijay Raj Kaushal and Jugal Kishore accused took her sister in law and mother-in-law to the ground floor portion on the pretext that they wanted to talk to them, and that she heard cries raised by her sister in law, she went downstairs and found both the accused beating her sister in law and mother in law and also using abusive language. She further deposed that in the meanwhile, a Sikh gentleman reached there and he accompanied by Jugal Kishore used dirty language for her sister in law and then said that they would tore away her clothes and rape her. PW11 further deposed that she somehow saved her sister in law, pushed her in the study room and she in turn closed the door from inside. PW-11 also deposed about arrival of her husband and that the accused persons started man-handling him.
Although PW11 Smt. Bharti has deposed about arrival of her husband to the ground floor portion even after her arrival, her mother in law (PW-5) did not state that her son (PW-12) too reached the spot or that the accused persons man-handled him. In case Vipin (PW-12) son of PW-5 and brother of PW-8 was present at the house, in the -:30:- given facts and circumstances of the case, he also must have accompanied his mother and sister while they accompanied Vijay Raj Kaushal and his companion to the ground floor. It is not believable that prosecutrix and her mother alone accompanied Vijay Raj Kaushal and his companion from the first floor to the ground floor, although, PW-12 Vipin was present in the house. Had he been manhandled by any of the accused, his mother would not have omitted to state so in court. But the fact remains that PW5 nowhere deposed about presence of or arrival of his son to the ground floor or that he was manhandled by any of the accused.
As noticed above, the prosecutrix deposed that she brought her torn shirt at the time Vijay Raj Kaushal shouted at her mother. As per prosecution version narrated by PW5, it was the shirt Vijay Raj Kaushal accused had torn at the time of commission of rape on her for the first time. It may be mentioned here that this version of prosecutrix does not find corroboration from statement of her mother, brother and sister in law, as none of them deposed about production of any shirt by the prosecutrix during occurrence dated 26/05/1999, stating that Vijay Raj Kaushal accused had torn -:31:- this shirt at the time of commission of rape on her for the first time. It is also not believable that PW8-prosecutrix kept concealed any such shirt w.e.f. December 1998 and produced it only on 26/05/1999.
PW11 Bharti nowhere deposed about presence of any elderly person in the company of Vijay Raj Kaushal accused at the time he reached their house, on 26/05/1999 at about 11 a.m. PW-12 Vipin, brother of the prosecutrix and husband of PW11 deposed that on 26/05/1999 when he returned from his duty, he saw large crowd gathered outside his house. On entering the house, he found Vijay Raj Kaushal alongwith 4-5 others including Jugal Kishore accused physically fighting with his mother and wife, and also using filthy language. When he tried to intervene, they started beating him as well and also abused him.
As per version narrated by PW12, he was not present at his house at the time Vijay Raj Kaushal accompanied by another came to their house on 26/05/1999. In his cross examination, he admitted that his duty hours from 5 a.m. to 2 p.m. However, the occurrence dated 26/05/1999 is alleged to have taken place at about 12 noon. -:32:- Police reached the spot at about 1 p.m. But according to PW-12 someone called the police and that police on reaching the spot took away all of them to the Police Station. PW-12 stated in his cross examination to have returned to his house at about 02:30 p.m. whereas PW-1 ASI Sanwar Mal deposed to have reached the spot at about 01:40 p.m. in the company of Constable Krishan Avtar and found that Vipin and Vijay Raj Kaushal had a quarrel. Had PW-12 Vipin returned to his house at about 02:30 p.m., the version narrated by PW-1 ASI Sanwar Mal that he on reaching the spot came to know that there was a quarrel between Vipin and Vijay Raj Kaushal, is contrary to the one narrated by the other witnesses. Furthermore, according to PW ASI Sanwar Mal, he sent Vipin Kumar, his mother, his sister - prosecutrix, and Vijay Raj Kaushal to DDU hospital for medico legal examination and thereafter started recording statement of the prosecutrix at about 5 p.m. He further deposed that statement of prosecutrix was recorded in the room of the prosecutrix. On the contrary PW12 Vipin deposed that police reached the spot and took away all of them to Police Station and from their they were sent to DDU hospital for medico legal examination. PW-12 nowhere deposed in chief examination -:33:- that his sister made any statement to the police levelling allegations of commission of rape on her by Vijay Raj Kaushal. There is also nothing in his statement that when he reached his house, his mother or sister or wife told him that Vijay Raj Kaushal and any of his companion had raised alarm to commit rape on the prosecutrix.
According to ASI Sanwar Mal, ruqqa was sent from the spot at 06:25 p.m. and it was on its basis that present case was registered. However, PW-12 Vipin nowher stated that any ruqqa was sent from the spot to the police station for getting the case registered on any statement made by his sister at their house.
Conclusion In view of the above discussion, this court finds merit in the contention of the learned defence counsel that statements of the prosecution witnesses are contradictory on material aspects and that the prosecutrix has materially improved upon her statement made in court. Consequently, this court comes to the conclusion that prosecution has failed to substantiate any of the accusation levelled again any of the two accused beyond shadow of reasonable doubt. As a result both the accused Vijay Raj Kaushal and Jugal Kishore -:34:- are acquitted in this case.
Case property be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
File be consigned to record room.
Announced in Open Court on Dated: 03rd of July, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini: Delhi 03/07/2007