The REAL STORY behind Media’s Story of Rape after Nikah

Posted: June 14, 2014 in Uncategorized
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I am writing this blog presuming a heated debate and endless arguments on why non consensual sex after marriage is not being accepted as Marital Rape in India. I fail to understand the wits of the Journalist who saw the Judgment and thought of giving this colour to the case despite the fact that it is a False rape case beyond any doubts. If he/she had patience to read the Judgment correctly, His/Her headline would have read “Girl lies about Marriage; files rape over property dispute”. But never the less, this kind of understanding is least expected from media when reporting a Rape story might earn the reporter some good mileage especially if the reporter gives it a spicy headline as “Forced intercourse in marriage not rape says delhi court” (http://www.ndtv.com/article/cities/forced-intercourse-in-marriage-not-rape-says-delhi-court-540945)

I am putting down the facts of the case as per the Judgment. Anyone who wish to clarify these facts can go to Judis.nic.in website and search for Judgment by Justice Veranda Bhat on June 5 2014. Accused and perhaps all male members of his family were implicated in this case. Two were discharged earlier and this is the judgment for discharge of the alleged Husband and Rapist. Here are facts on why it is a fabricated case to settle a property dispute.

 

  1. Apart from the girl, there is no one else who has been presented as witness to verify that a Nikah was performed between the girl and the boy. There is no Molvi. There is no relative of boy where the alleged Nikah took place. EVEN THE HOUSE WHERE THE NIKAH ALLEGEDLY HAPPENED has NOT been shown by the girl to the Investigating Officer!!!!
  2. The girl could not show the police the home where the accused used to take her to rape which in her complaint she said is his friends place. Investigating Officer made no attempt to find this imaginary friend of the accused and interrogate him.
  3. The girl said she was raped after giving her some drinks laced with sedatives in her own “house”. She became unconscious and gained consciousness only after 2 hours. The accused raped her during this time. The time of rape of having drinks is 5-6 pm. Which means she would have gained consciousness by 8-9 pm by which time many of her family members were already at home, so if she was being raped, they would have seen it.
  4. The girl says the rape happened in July while the accused was still teaching her History in October 2012.
  5. The girl says the boy came every day at her house when she was alone at around 1 pm.
  6. She never informed about the Nikah to anyone in her family though there was no pressure on her not to reveal the same.
  7. She filed a complaint of rape the day accused and her father asked their family to vacate three storey building in which her entire family was staying for last 5-6 years and they had not paid the rent for very long and were not vacating the space as well. There was a quarrel between the family on January 2013 and she filed the complaint the same day.
  8. There was a possession suit filed already by the father of the accused against the complainants family.
  9. No one apart form girl and her mother have been presented as witnesses.
  10. Audio recordings have been presented in the case in the court where talks of settlement of case are being made by the girl and one more friend of hers. Girl denies its her voice.
  11. Girl has not been able to answer why she kept changing and improving her statements from the time of complaint filed to the time of statement given to the magistrate.
  12. The court has relied on judgment Radhu vs. State of M.P., 2007 12 SCC 577 where benefit of doubt has been given to the accused since there are several discrepancies in the statement of the victim.
  13. The Bua of the accused at place of whose Nikah was performed has NOT been presented in the court of law. I dun think the prosecution would not have insisted on bringing such an important witness!
  14. LAST BUT NOT THE LEAST even in the statement of the girl, has she said that she was FORCED by the accused for sex after the alleged Nikah. But the Journalist chose to give headline of forced intercourse after Marriage!

 

The biggest irony of this case is not that a girl has been victimised but that a man who perhaps did not commit the heinous crime of Rape has been subjected to humiliation and projected as a Rapist. The girl is barely 19/20 , I am assuming the man would also be in his twenties since there seems to be some affection between the boy and the girl. I wonder how his entire life has been ruined by this case. If Rape scars a woman for life, false rape case is no less since the man goes through worst degree of torture by first police – then inmates in the Jail – then the courts and above all SOCIETY. A similar case was filed last year when an Old man hanged himself when his tenant filed a false case of rape on this old man. He had a wife and a daughter, I wonder if ANYONE would understand the pain of these women.

False rape cases are a rising menace in the society. No one understands the pain of a person falsely accused except his family and people who know the truth of the matter. It’s really sad that media ….in haste of reporting, ignores the FACTS of the case and declares a person GUILTY even before TRIAL in cases of Dowry and Rape. I understand many women in my country are subjected to violence but I fail to understand in order to protect genuine victims how are we becoming BLIND to these false cases that are rising unabated.

In my research for my film on misuse of dowry laws and gross abuse of IPC 498A, I have come across several families that have been shattered and broken by false allegations. Dowry laws abused has become an Industry in itself. Huge settlements in these cases is an OPEN SECRET. The law – few legal luminaries say has lost its sheen and FAILED UTTERLY to put any dent on crime intended to be prevented – of Dowry. I wonder if Rape laws would also come down to the same level and would not hesitate to say WILL unless a cap on these false cases is put.

I WONDER WHAT PREVENTED learned Judge in this case to initiate proceedings against the father of the girl and her family to have used her as a pawn in order to settle scores and file this case. This case would add to the statistics of Rape in India. And then we would celebrate India becoming the most dangerous place for women to be.

Disclaimer: If you wish to debate with me on this case, please read the Judgment before you vent your anger! 

 

—————————- Here’s the Judgment copied from Judis.Nic.In site ————————————————–

IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI.

SC No.131/13.
Unique Case ID No. 02405R0075252013.

State Vs. 1. Aftab Alam,
S/o Sh. Manjur Alam,

R/o RZ-C-76, Sitapuri Extn. Part-I, Dabri,
Delhi.

2. Jahir Alam (already Discharged) S/o Sh. Manjur Alam,
R/o RZ-C-76, Sitapuri Extn. Part-I,
Dabri,

Delhi.

3. Manjur Alam (already Discharged) S/o Mohd. Hussen Alam,
R/o RZ-C-76, Sitapuri Extn. Part-I,
Dabri,

Delhi.

Date of Institution : 15.3.2013.

FIR No.13 dated 10.1.2013. U/s. 328/376 IPC.
P.S. Bindapur.

Date of reserving judgment/Order : 29.5.2014. Date of pronouncement : 05.6.2014.

JUDGMENT

1. The abovenamed accused Aftab Alam alongwith his father Sh. Manjoor Alam and brother Zahir Alam were chargesheeted by the prosecution for the offences punishable u/s.328/366/376/506/509 IPC. It may be mentioned here that accused Manjoor Alam and Zahir Alam were discharged by this court vide order dated 18.4.2013. Charges were framed against accused Aftab Alam only and he has been facing trial.

2. As per the prosecution case, the prosecutrix namely ‘R’ (real name withheld in order to conceal her identity) has been residing as a tenant alongwith her family in House No.A-836, Pankha Road, Uttam Nagar, New Delhi, belonging to the accused’s father Manzoor Alam at monthly rent of Rs.3,000/-. Accused Aftab Alam used to visit their house for demand of rent and used to spend time in their house and talk to them. About 2 or 3 months before registration of the FIR in this case, the accused had visited the residence of the prosecutrix to receive rent. He was having a bottle of Pepsi cold drink in his hand. He asked the prosecutrix where her parents were and she replied that they are not at home and he should come home in the evening. Upon hearing this, the accused asked the prosecutrix to keep bottle of cold drink in the refrigerator and left from there. The accused returned there after about half an hour and asked the prosecutrix to bring Pepsi bottle from the refrigerator as also one glass. Accused poured Pepsi in the glass and offered same to the prosecutrix. The prosecutrix consumed the Pepsi and soon thereafter she became unconscious. When she regained consciousness, she found that her clothes were taken off and realised that she has been raped by the accused. She asked the accused what has he done and told him that she would narrate the entire incident to her family members, upon which accused told her that he loves her and wants to marry her. Thereafter accused left. Next day, the accused asked the prosecutrix to get prepared. She got ready and the accused took her to the house of his paternal aunt (Bua) near Dhaula Kuan, where a Molvi was already present. The Molvi took out certain papers and obtained the signatures of prosecutrix on those and solemnized the Nikah of accused with the prosecutrix. Thereafter, accused took her to his home where he raped her and then asked her to go to her house. She told him that why should she go to her house when their Nikah has been performed, upon which the accused told her that she would have to go to her house for some days till he arranges an accommodation on rent. Thereafter, the accused avoided to take her back on one pretext or the other. One day, accused called her to his house and burnt the Nikah papers in her presence and declared that he has not solemnized any marriage with her and it was only a Drama. He also threatened her that in case she narrated anything to her family members or his family members, he would send her nude photographs to his friends. On 09.1.2013 at about 5 p.m., accused came to the house of the prosecutrix and started beating her. The mother of the prosecutrix intervened and asked her why is he doing so. The accused called his father and brother and all started quarrelling with the prosecutrix and her mother. The accused, his father and his brother asked the prosecutrix and her mother to vacate their house or otherwise, they know how to get the house vacated in two minutes. When she told accused’s father that the accused had committed rape upon her after mixing some intoxicating substance in her cold drink and on the false pretext of marriage and also had taken her obscene photographs, he as well as accused’s brother started abusing them and then left after giving threats that they would make their life a hell.

3. It is further case of the prosecution that the prosecutrix had appeared in the police station on 09.1.2013 and submitted a written complaint to the SHO. She was taken to DDU Hospital for medical examination by SI Naresh Kumar and Lady Const. Chhotu. On return from the hospital, they met Inspector Renu Sharma in the police station and handed over the written complaint of the prosecutrix as well as her MLC to her. They also handed over the exhibits of the prosecutrix as well as seizure memo to Inspector Renu Sharma. On the basis of the complaint of the prosecutrix and the contents of the MLC Inspector Renu Sharma prepared rukka and got the FIR registered. Investigation was started by Inspector Renu Sharma, who prepared the site plan of the spot of incident and seized the exhibits of the prosecutrix. She recorded the statement of the witnesses. Accused Aftab Alam came to be arrested. He made disclosure statement admitting is guilt. He was got medically examined in DDU Hospital. Statement of the prosecutrix u/s.164 Cr.PC was got recorded. All the exhibits were sent to FSL for forensic examination. The school record of the prosecutrix was seized which revealed her date of birth to be 01.4.1994 meaning thereby that she was between 18 to 19 years of age at the time of first incident of rape.

4. After completion of the investigation, Charge Sheet was prepared and submitted to the concerned Ilaqa Magistrate. Upon committal of the case to the court of Sessions, Charges u/s. 328 IPC, u/s.376 IPC and u/s.506 IPC were framed against the accused on 18.4.2013. The accused denied the charges and accordingly trial was held. At trial, the prosecution examined 16 witnesses to prove the charges against the accused. The accused was examined u/s.313 Cr.PC on 24.4.2014 wherein he denied the prosecution case and claimed false implication. The accused examined three witnesses in his defence.

5. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the entire record.

6. PW1 has proved the school record of the prosecutrix regarding her age. As per record proved by her, the date of birth of the prosecutrix is 01.4.1994. According to the prosecutrix, the first incident of rape had taken place in the month of October/November, 2012 which means that the prosecutrix was more than 18 years of age at that time and thus a major.

7. The prosecutrix has been examined as PW3. She deposed that the accused is the son of their landlord and her family is residing in the house of accused’s father as tenant at a monthly rent of Rs.3,000/-. She has six brothers and one sister. She further deposed that accused used to come to their room to receive rent. Initially, he used to come once in a month but after sometime, he started coming daily at about 1 p.m. when she was alone in the house. Accused told her that he would teach her and he taught her history for about three days in the month of October, 2012. She further deposed that on 19.7.2012, accused came to her room at about 4.30 p.m. or 5.30 p.m. when she was alone in the house. He was having a plastic bottle of cold drink in his hand and asked her to keep it in the refrigerator. He left saying that he would return in about half an hour or one hour. She usually remained alone in her house till about 8 pm. He told her that he is going to Najafgarh. He returned after about half an hour and asked her to bring the cold drink bottle and a glass, which she did. He poured the cold drink in the glass and offered it to her. She consumed the cold drink and after about five to six minutes, she was only semi conscious. Accused took her to their room on the second floor of the house. She was only semi conscious but she was not in a position to see properly what was happening around. She became fully conscious after about two to three hours and she noticed that she was lying completely nude on the bed and the accused was besides me in nude condition. She started weeping and told him that she would disclose the incident to her mother. She also made a call on the mobile phone of his father, but the mobile phone was with him only and he told her that his parents have gone to Bihar. He threatened her that if she narrated the incident to anybody, he would kill her. Thereafter accused left saying that he would take her to somewhere the next day.

8. She further deposed that next day at about 8 a.m., accused gave her a phone call and asked her to come out of the house as he was waiting outside the house. Accused was on his motorcycle. She boarded his motorcycle as pillion and he took her on the motorcycle to the house of his paternal aunt (Bua) ahead of Dhaula Kuan. In that house a Maulvi was already present. Accused signed a plain paper and also made her to sign the same. His name was written on the paper as Arif s/o Manzoor Arif. Then accused told her that their ‘Nikah’ has been performed and thereafter he brought her to his house at Dabri. He kept her there for about two hours and committed rape upon her five or six times during that period. Thereafter he told her to go home. She told him that why should she go home when their ‘Nikah’ has been performed and she would stay in his house only. He said that she would have to go home for some period of time during which he would arrange an accommodation on rent and then they would start residing there together. Thereafter she returned home. However, the accused did not come to take her. Whenever she called him, he used to tell her that he has not arranged any room on rent and also that he does not have money. She made a call to the father of the accused informing him about their marriage, but he was not prepared to believe the same. Accused used to take her to the house of his friend at Dabri where also he used to rape her.

9. She further deposed that on 09.01.2013, the accused called her and asked her to reach the house of friend at Dabri, but she did not go there. Accused told her that if she would stay with him, she shall have to do whatever he asks her to do. Then on the same day, accused came to her house at about 1 p.m. and started beating her and thereafter left. She called father of the accused and apprised him about the actions of the accused. At about 3 p.m., accused, his father and his elder brother came to their house. She told them about the acts of the accused but they were not prepared to believe her and told her that she cannot do anything to the accused. She further deposed that on the same day i.e. 09.1.2013 she alongwith her elder brother Munna Qureshi went to the police station and submitted a written complaint which is Ex.PW3/A. From the police station she was taken to hospital for medical examination. Next day, she was brought to the court where her statement u/s.164 Cr.PC was recorded, which she proved as Ex.PW3/B. From the court, she took police officials to the house of the accused where the accused was arrested in her presence vide arrest memo Ex.PW3/C. She was declared hostile by Ld. APP and in the cross examination conducted by Ld. APP, she admitted that after the first incident of rape, the accused had told her that he loves her and wants to marry her. She also admitted that one day, accused had called her to his house and burnt all the papers which he had prepared and declared that he has not solemnized any marriage with her and that all this was a Drama. He also threatened her that if she narrated this either to his family members or her own family members, he would show her nude photographs to his friends. She could not say whether accused was taking her to the house of his friend at Bindapur as mentioned by her in his statement u/s.164 Cr.PC Ex.PW3/B. However, she admitted that the accused used to take her to his friend’s house almost daily and used to have sex with her on the pretext of being married to her.

10. In the cross examination, she deposed that the house, in which they resided is three storeyed and the whole house is in their occupation. Only one of her brothers is married having two daughters and his family resides separately on the ground floor of the same house. They have been residing in the house of the accused as tenants for the last four or five years. Sometime her mother, sometime she herself and sometime her brother used to pay rent to the landlord. Her father has never paid rent himself to the landlord. She had paid rent on two occasions to the father of the accused and about 5 to 6 times to the accused. She deposed that the accused had told her that he is pursuing B.A. Course and is in the final year. She did not know that he is 12th fail and that his subjects were Commerce. The accused used to teach her history in the room on the second floor of the house and he did so for about three days in the month of October, 2012. She further deposed that on 19.7.2012 she was present alone in the house at 4.30 p.m. Her father had gone for work. Her mother also had gone for work as she leaves at 8 a.m. and returns at 8 p.m. or 9 p.m. Her sister had gone for tuition classes as she returns from tuition classes at about 6 p.m. or 6.30 p.m. Her brothers Kasim and Javed had gone on tour as they drive tourist buses. Her another brother Nazim had gone alongwith her father to sell vegetables. Her brother Mousim had gone to school as his school timings are 12 pm. to 6.30 p.m. and returns home at 7 p.m. Her another brother Hasim had gone to tuition classes as his tuition timings are from 2 p.m. to 5 p.m. She did not know where her sixth brother Aftab had gone at that time. His wife had gone to her parental home alongwith her two daughters.

11. She further deposed that the refrigerator is placed on the first floor of their house. The accused was sitting in the room on the second floor. She had brought the cold drink bottle and glass from the fridge upto that room and she consumed the cold drink there only. When the accused had come to their room and handed over the cold drink bottle to her, she did not ask him not to enter the house as she was alone. She also did not tell him so on the second occasion also when he returned after about half an hour. In between two visits of the accused to their house on the date of incident, her brother Hasim had come there and left again after keeping his bag on the first floor. Nobody else had come to the house during that period. She did not know who amongst her family members returned home first after the incident.

12. She further deposed that on the next day of the incident, she left home for school as usual at 7 a.m. and accused met her in the gali outside their house. He told her not to go to the school as he would take her for an outing after 8.30 a.m. when her mother would have left for work. Accordingly, she did not go to school and returned home. According to her, she as well as her sister Gulzar studied in the same class i.e. 12th class and in the same school and usually leave for school together. However, she added that her sister leaves home for school after her as she wakes up late and they do not meet each other in the school even during the lunch break. Her sister goes for her computer classes daily from the school itself and also attends English Speaking Course on alternate days and therefore, they do not come home together from school. Her sister used to return home daily at 6 p.m. or 6.30 p.m. after taking her extra tuition classes. She had a separate mobile phone bearing no.7827188485 and her sister had a separate mobile phone. On 20.7.2012, she left home alongwith accused between 8.30 a.m. and 9.30 a.m. At that time only, her brother Hasim was present in the house but she did not inform him that she is leaving with the accused. In reply to the court question, she deposed that when she returned home after accused met her in the gali, her parents were present in the house and she told that accused had met her and asked her to go home. However, she did not tell them that accused would be coming to take her alongwith him at about 8.30 a.m. and she would go with the accused for an outing.

13. She further deposed that she had seen the accused making rounds on his motorcycle in front of their house. The accused then made a call to her saying that he is waiting for her at Himalaya Sagar road and accordingly she left home and met him at that place. She had not gone alongwith accused on his motorcycle before that date. After that day, she accompanied the accused on his motorcycle several times. The accused used to take her on his motorcycle from her tuition classes after every 2 or 3 days and on those days, she did not attend tuition classes. She did not tell anybody at home that she has been going alongwith accused for outing. She denied that she had gone alongwith accused in presence of her parents and within their knowledge after 20.7.2012. She deposed that she has bank account in PNB, Nanakpura. She admitted that she had gone to the bank alongwith accused on one occasion only i.e. 20.7.2012 as her mother had given some money to her to deposit the same in her account. On that day, accused dropped her at home at about 2 p.m. and nobody was present in her house at that time. She denied that she had visited PNB, Nanakpura, again alongwith accused on 23.7.2012. She deposed that a person named Munna is also living with them since his childhood and she treats him as his brother. He is an electrician and on the date of incident had left for Jama Masjid at 7 a.m. and returned at 7.30 p.m. She further deposed that the girl Seema is her friend and is much elder to her. She did not narrate the incident of rape to her. She denied the suggestion that Seema had made her to talk to the father of the accused. She did not know whether Seema had talked to the accused and his family members after the incident and had demanded money from the accused and his family on her behalf in lieu of withdrawal of the present criminal case. A CD containing conversation between a male and a female was played in the court. The witness denied that the female voice in the conversation is that of Seema. She further deposed that she had never made a call to the family members of the accused after the day of incident. Another CD containing the conversation between a male and a female was played in the court and the witness denied that the female voice is her voice. She further deposed that one day after about one and a half months of the incident of rape, Niyamat, an acquittance of the father of the accused, had called her to his house. When she reached his house, the father and brother of the accused were present there and Niyamat asked her whether she would like to settle the matter with the accused but she refused. The brother and the father of the accused did not say anything to her. She did not know Niyamat before that date. She had gone to the house of Niyamat alone. She denied that she made several calls to Niyamat asking him to meet her regarding this case and pursuant to those calls, the aforesaid meeting was fixed. She did not tell anybody at her home that she had received calls from Niyamat and that she is going to meet him at his house. She could not say whether Seema was or was not present in the house of Niyamat at that time, but had taken considerably a long time to answer this question. She denied that the meeting was arranged at the instance of Seema and herself and further stated that she does not know whether Seema was present there.

14. She further deposed that she had told her mother that she had gone to the bank alongwith accused on 20.7.2012 to deposit money, upon which her mother had shown resentment. She had accompanied the accused on various occasions thereafter also but did not tell her parents about the same as the accused had forbidden her from doing so. She deposed that accused had solemnized Nikah with her at the house of her parental aunt on the same day i.e. 20.7.2012 and it was a Friday. She did not visit the bank alongwith accused on any day after 20.7.2012. She could not tell since when they have not paid rent to their landlord. She denied that a suit for possession has been filed by the accused’s father against them and they are in occupation of the said house despite the said suit. She admitted having stated in her statement u/s.164 Cr.PC that the accused came to their house on 09.1.2013 and asked them to vacate the house and thereafter his brother as well as his father also reached there and all the three started beating her and while leaving they issued threats to her that they should vacate the house within two days. She further reiterated that her Nikah has been performed with the accused and she considers herself as his wife. However, she has not filed any legal proceedings against the accused claiming her rights as his wife. She denied that on 09.1.2013 a quarrel had taken place between her and the accused on the issue of rent as they had neither paid rent of the house not had vacated the house. She deposed that she had visited the house of accused’s friend at Bindapur only two times though she has mentioned in her statement u/s.164 Cr.PC Ex.PW3/B that accused used to take her to his friend’s house at Bindapur daily.

15. The mother of the prosecutrix has been examined as PW4. She deposed that the accused is the son of their landlord and he used to come to their house to collect rent of the house. She further deposed that the prosecutrix had told her that the accused had beaten her and raped her repeatedly. Prosecutrix had also told her that the accused had kept her as his wife. In the cross examination, she deposed that being illiterate, she does not know about date and month when the accused had beaten and raped her daughter. She used to sell Mango shake on a Rehri from 8 a.m. or 9 a.m. upto 7 p.m. or 8 p.m. According to her, the prosecutrix used to leave for school at 7 a.m. and used to return at 1.30 p.m. after which she used to go to tuition classes wherefrom she returned at about 6 p.m. She did not know whether prosecutrix had accompanied the accused to any place on any day. She used to give money to the prosecutrix to deposit the same in her bank account in PNB, Dhaula Kuan, but she could not tell whether the prosecutrix visited bank alongwith some other person also. She deposed that the prosecutrix told her about the acts of accused on the date when quarrel took place between them. She could not tell the date and month when the quarrel had taken place. However, she was not present in the house at the time of quarrel. When she returned home on that day, quarrel was still going on and it was regarding the rent of house. She did not know whether any Nikah has been solemnized between the prosecutrix and the accused. She admitted that they have not vacated the house despite being told by accused’s father to vacate the same.

16. It is a trite law that in cases involving offence of rape, the accused can be convicted on the basis of sole testimony of the prosecutrix provided the same appears to be credible and trustworthy and inspires confidence of the court. If for some reason, the court is not inclined to place implicit reliance upon the testimony of the prosecutrix, it may look for corroboration from the other evidence on record. Since the accused can be held guilty on the sole testimony of the prosecutrix and the offence of rape being a very serious one which entails even life imprisonment, it is the duty of the court to scrutinize the testimony of the prosecutrix very minutely. It is to be borne in mind that the testimony of the prosecutrix should not suffer from any embellishments or prevarications and she should qualify as a sterling witness so that the court can place reliance and trust upon her testimony. It is also to be noted that the like every criminal case, in rape case too, it is the duty of the prosecution, to bring home the guilt of the accused beyond reasonable doubt and the prosecution never gets relieved from this burden. The benefit of every doubt must go to the accused.

17. In the instant case, according to the prosecution, the accused had committed rape upon the prosecutrix for the first time on 19.7.2012 after making her unconscious by adminstering some stupefying substance mixed in cold drink.

18. It is important to note here that the prosecutrix has not mentioned the date, month and year, on which she was raped by the accused after making her unconscious, either in her complaint Ex.PW3/A or in her statement u/s.164 Cr.PC Ex.PW3/B. The date has been mentioned by the prosecutrix for the first time in her testimony before this court as 19.7.2012. There is no explanation from her as to why she did not mention the date in her complaint Ex.PW3/A and statement Ex.PW3/B. This creates a doubt in the mind of the court regarding veracity of testimony of the prosecutrix in this regard.

19. It has been deposed by the prosecutrix that on 19.7.2012, the accused came to her room at about 4.30 p.m. or 5.30 p.m. when she was alone in the house. Accused was having a plastic bottle of cold drink in his hand and asked her to keep the same in the refrigerator. He left saying that he would return after about half an hour or one hour. Accused returned after about half an hour and asked her to bring the cold drink bottle and one glass. He poured the cold drink in the glass and offered it to her. She consumed the cold drink and after about 5 to 6 minutes, she was only semiconscious. Accused took her to the room on the second floor. She became fully conscious after about 2 hours and noticed that she was lying completely nude on the bed and the accused was besides her in nude condition. She started weeping and told the accused that she would disclose the incident to her mother. The accused threatened her that if she narrated the incident to anybody, he would kill her. Thereafter, accused left after saying that he would take her somewhere else the next day.

20. Thus according to the deposition of the prosecutrix, she consumed cold drink offered to her by the accused at about 5 p.m. or 6 p.m. whereafter she became unconscious. She regained consciousness at about 8 p.m. or 9 p.m. In the cross examination, she has deposed that her mother usually returns home at about 8 p.m. or 9 p.m. and her sister also returns home from tuition classes at about 6 p.m. or 6.30 p.m. Her brother Mohsin also used to return home at about 7 p.m. and another brother Hasim used to return home from tuition classes at about 5 p.m. She has also deposed that her foster brother Munna had returned home at 7.30 p.m. on that day. Therefore, it is evident that the mother, the two brothers of the prosecutrix and Munna would have returned home during the period she was unconscious and being sexually assaulted by the accused and they would have noticed the incident. The mother of the prosecutrix appearing as PW4 has stated nothing about the said incident. Her two brothers Mohsin and Hasim as well as her foster brother Munna have not been examined by the prosecution. It is to be noted that the prosecutrix has nowhere deposed that her mother and the two brothers Mohsin and Hasim did not return home on their usual time on 19.7.2012.

21. Had the incident of rape, as alleged by the prosecution been true, all the aforementioned persons would have noticed and discovered the prosecutrix as well as the accused together in a room in nude condition and would have caught the accused red handed. That not being the case, it is highly unlikely that any incident of rape had taken place with the prosecutrix on 19.7.2012 as mentioned by her. Further the conduct of the prosecutrix also does not appear to be questionable. She used to allow entry to the accused to her room almost daily at about 1 p.m. when she was present alone in the house. On the date of incident also, she did not refuse entry into her room to the accused. She readily accepted the cold drink bottle from the accused and kept the same in the refrigerator as directed by him. She consumed the cold drink, offered to her by the accused, without any hesitation. She did not tell the accused to go away as she is alone and her parents are not present in the house. She did not disclose the incident to any of her family members on that day, though she has tried to explain that the accused had threatened her not to narrate the incident to anybody or otherwise, he would kill her. However, this is an improvement upon her earlier statement as she did not mention in her complaint Ex.PW3/A that accused had threatened her. In that complaint, she has stated that the accused told her that he loves her and wants to marry her. Keeping in view the aforementioned circumstances established on record, it is very difficult to believe that the accused had subjected the prosecutrix to rape after making her unconscious on the date and at the time as mentioned by the prosecutrix.

22. Further conduct of the prosecutrix in accompanying the accused voluntarily and willingly on the next day is also highly unnatural and goes against the prosecution case. It beats all imagination to say that a rape victim would voluntarily accompany the rapist on the subsequent date after the incident of rape. Evidently, the accused had neither forced nor threatened the prosecutrix to accompany him on 20.7.2012. She appeared to be willing to accompany the accused. She did not inform any of her family members that she is going for an outing alongwith the accused. She did not appear to be under any kind of fear from the accused on that day which too is indicative of the fact that she had not been raped by the accused on the previous date i.e. 19.7.2012 or otherwise she would have shown utmost reluctance and hesitation in accompanying him on 20.7.2012.

23. It is the case of the prosecution itself that the accused performed Nikah with the prosecutrix in the house of his paternal aunt (Bua) in presence of a Molvi on 20.7.2012. Thus the prosecutrix and the accused were legally wedded husband and wife from 20.7.2012 and the physical relations between the two thereafter, even if against the consent of the prosecutrix, do not tantamount to offence of rape. The prosecutrix has herself deposed in her examination in chief that the accused performed Nikah with her on 20.7.2012. Thereafter when he told her to go home, she asked him why she should go home when their Nikah has been performed and she should stay in his house only, upon which the accused told her that she would have to go home for some period of time, during which he would arrange accommodation on rent and then they would start residing there together. She has reiterated in her cross examination that her Nikah has been performed with the accused and she considers herself as his wife. In view of said clearcut statement of the prosecutrix, there is no difficulty to hold that the sexual intercourse between her and the accused after 20.7.2012 does not come within the ambit of offence of rape.

24. I may note here that the accused has denied that he was with the prosecutrix on 20.7.2012 or had solemnized Nikah with her. There is no evidence on record regarding the Nikah between prosecutrix and accused except the statement of prosecutrix. The Moulvi who performed the Nikah has not been found out and examined as a witness. No inquiries appear to have been made by the IO from the paternal aunt (Bua) of accused in whose house, the Nikah is stated to have been solemnized. She has not been produced as a witness. The IO has made no attempt to locate that house where the Nikah is stated to have been solemnized. Even the fact that the accused was with the prosecutrix on 20.7.2012 is doubtful. The prosecutrix has deposed in her cross examination that her brother Hasim was present in the house, when she left alongwith accused on 20.7.2012 at 8.30 a.m. Intriguingly, Hasim has not been examined as a witness. She then deposed that she alongwith the accused has gone to PNB, Nanakpura also on that day to deposit money in her bank account which had been given to her by her mother. However, the statement of account of the prosecutrix’s bank account Ex.DW1/A proved by DW1 shows that no money was deposited in the said account on 20.7.2012. A sum of Rs.15,000/- in cash has been deposited in it on 23.7.2012. Thus the version of prosecutrix regarding the events dated 20.7.2012 including solemnization of Nikah with the accused appears to be unconvincing and doubtful. The fact that the prosecutrix did not reveal the factum of Nikah to her family members, also makes her version unbelievable.

25. Hence it is important to determine whether the prosecutrix and accused had indulged in physical relations on or after 20.7.2012 and if so, whether those were consensual or against the consent of the prosecutrix.

26. Even if it is assumed that no Nikah was performed between the prosecutrix and the accused on 20.7.2012 still I do not find any convincing evidence on record to demonstrate that the accused had raped her on or after 20.7.2012. The prosecutrix has deposed that after the performance of Nikah on 20.7.2012 the accused took her to his home where he raped her 5 or 6 times during the period of two hours and then told her to go home. It seems to be a very vague statement and therefore, absolutely not reliable or believable. She does not say who else was present in the house of the accused at that time and what was their reaction when she entered the house alongwith accused. Whether they declared the factum of Nikah to the family members of the accused present there at that time. She does not say whether the acts of sexual intercourse were forcible or she simply subjected her body to the accused on the belief that she is her wife. Further she has not shown to the Investigating Officer the room in the house of the accused where he had raped her on 20.7.2012 and hence the site plan of the said room has not been prepared by the IO. In view of these discrepancies, it is very difficult to believe that the accused had raped the prosecutrix on 20.7.2012.

27. The prosecutrix has further deposed that the accused used to take her to the house of her friend at Bindapur where also he raped her. This too appears to be one line vague statement. She has not explained whether she had accompanied the accused on those occasions voluntarily or the accused had forced her to accompany him. She has not stated anything about these incidents of rape in her complaint to the police Ex.PW3/A. In the statement u/s.164 Cr.PC Ex.PW3/B she has stated for the first time that accused used to take her to the house of his friend at Bindapur daily where he used to have sexual intercourse with her. Apparently, these incidents of sexual intercourse appear to be consensual. In the cross examination, she has deposed that the accused took her to his friend’s house at Bindapur only two times. The prosecutrix did not show that house to the Investigating Officer and she has not explained any reason for the same. That friend of the accused has not been interrogated by the police. Considering the overall circumstances, the deposition of the prosecutrix in this regard does not appear to be credible and trustworthy and it is very difficult to believe that the accused had raped her in his friend’s house at Bindapur.

28. It is very intriguing that the prosecutrix did not reveal to her parents and brothers that she had performed Nikah with the accused, when she was neither any threat or any pressure from the accused in this regard. In fact the reason for filing complaint against the accused on 09.1.2013 does not appear to be that accused was avoiding to take her into matrimonial fold despite ‘Nikah’.

29. The defence put forth by the accused right from the beginning is that the prosecutrix has lodged a false complaint as they neither intended to pay the rent of the house to his father nor wanted to vacate the house. Accused’s father appearing as DW2 has reiterated the same. This defence taken by the accused appears to be probable and plausible. Admittedly, the family of the prosecutrix is residing as tenant in the house of prosecutrix’s father and have not paid rent for a very long time and have not vacated the same despite being asked to do so.

30. It has also come in the cross examination of prosecutrix that she had gone to the house of one Niyamat for the settlement talks with accused’s brother and father. She has avoided straight answers to the questions as to if said meeting was arranged by her friend Seema at her instance and if Seema too was present in the meeting. This coupled with the fact that she had gone there alone without informing anybody at her home and the fact that she didn’t know Niyamat before that date indicate that the meeting was arranged at her instance by Seema as she wanted some settlement with the accused.

31. Having regard to the nature of testimony of the prosecutrix as discussed herein above and the defence put forth by the accused, which stands corroborated by the testimony of DW2, this court is not inclined to believe the version of the prosecution. The testimony of the prosecutrix is suspicious and far from being credible or trustworthy. The defence of the accused seems to be more probable. The Supreme Court has way back in the year 2007 in Radhu vs. State of M.P., 2007 12 SCC 577 while holding that where the testimony of the victim is discrepant, the benefit of doubt has to be given to the accused, further observed as under :

“The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instance where a parent has persuaded a gullible or obedient daughter to make a false charge of rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”

32. Keeping in view the aforesaid discussion, the conscious of this court does not permit it to believe the version of the prosecution. The accused deserves to be given the benefit of doubt. Accordingly, the accused is hereby acquitted of all the charges.

Announced in open Court on 05.6.2014.

(VIRENDER BHAT) Addl. Sessions Judge

(Special Fast Track Court) Dwarka Courts, New Delhi.

 

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Comments
  1. Burt Phoenix says:

    Are 2 male witnesses not compulsory to complete the nikah ceremony? In the article you mention that there was no witness to the nikah, hence would this not be an invalid nikah in the first place?

  2. Moti si asha says:

    Very beautifully drafted… May god bless u in tons. To win ur war against misuse of 498a

  3. vinayak says:

    Super post. This should be compulsory reading for anyone researching on the fakerape culture in India !!

    Regards
    Vinayak

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