IN THE COURT OF SH. VIRENDER BHAT, A.S.J.

(SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No.131/13.
Uni!" C#$" ID No. %&'%(R%%)(&(&%13.
S*#*" V$. 1. A+*#, A-#.,
S/o S/. 0#n1!2 A-#.,
R/o R34C4)5, Si*#6!2i E7*n. P#2*4I,
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D#*" o+ In$*i*!*ion < 1(.3.&%13.
FIR No.13 8#*"8 1%.1.&%13.
U/$. 3&=/3)5 IPC.
P.S. Bin8#6!2.
D#*" o+ 2"$"2>in; 1!8;."n*/O28"2 < &?.(.&%1'.
D#*" o+ 62ono!n:"."n* < %(.5.&%1'.
JUD@0ENT
1. The abovenamed accused Aftab Alam alongwith his
father Sh. Manjoor Alam and brother Zahir Alam were
chargesheeted by the prosecution for the offences punishable u/s.
SC No.131/13. Page 1 of 24
!"/##/$#/%&#/%&' ()*. (t may be mentioned here that accused
Manjoor Alam and Zahir Alam were discharged by this court vide
order dated 1".+.!&1. *harges were framed against accused
Aftab Alam only and he has been facing trial.
!. As per the prosecution case, the prosecutri- namely
./. 0real name withheld in order to conceal her identity1 has been
residing as a tenant alongwith her family in 2ouse 3o.A4"#,
)an5ha /oad, 6ttam 3agar, 3ew 7elhi, belonging to the accused.s
father Man8oor Alam at monthly rent of /s.,&&&/4. Accused Aftab
Alam used to visit their house for demand of rent and used to
spend time in their house and tal5 to them. About ! or months
before registration of the 9(/ in this case, the accused had visited
the residence of the prosecutri- to receive rent. 2e was having a
bottle of )epsi cold drin5 in his hand. 2e as5ed the prosecutri-
where her parents were and she replied that they are not at home
and he should come home in the evening. 6pon hearing this, the
accused as5ed the prosecutri- to 5eep bottle of cold drin5 in the
refrigerator and left from there. The accused returned there after
about half an hour and as5ed the prosecutri- to bring )epsi bottle
from the refrigerator as also one glass. Accused poured )epsi in
the glass and offered same to the prosecutri-. The prosecutri-
consumed the )epsi and soon thereafter she became unconscious.
:hen she regained consciousness, she found that her clothes
were ta5en off and realised that she has been raped by the
accused. She as5ed 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. 3e-t day, the accused as5ed the
SC No.131/13. Page 2 of 24
prosecutri- to get prepared. She got ready and the accused too5
her to the house of his paternal aunt 0;ua1 near 7haula <uan,
where a Molvi was already present. The Molvi too5 out certain
papers and obtained the signatures of prosecutri- on those and
solemni8ed the 3i5ah of accused with the prosecutri-. Thereafter,
accused too5 her to his home where he raped her and then as5ed
her to go to her house. She told him that why should she go to her
house when their 3i5ah 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 ta5e her bac5 on one prete-t or the other. =ne
day, accused called her to his house and burnt the 3i5ah papers in
her presence and declared that he has not solemni8ed any
marriage with her and it was only a 7rama. 2e 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. =n &'.1.!&1 at about % p.m., accused came to the house
of the prosecutri- and started beating her. The mother of the
prosecutri- intervened and as5ed her why is he doing so. The
accused called his father and brother and all started >uarrelling
with the prosecutri- and her mother. The accused, his father and
his brother as5ed the prosecutri- and her mother to vacate their
house or otherwise, they 5now how to get the house vacated in
two minutes. :hen she told accused.s father that the accused had
committed rape upon her after mi-ing some into-icating
substance in her cold drin5 and on the false prete-t of marriage
and also had ta5en her obscene photographs, he as well as
accused.s brother started abusing them and then left after giving
threats that they would ma5e their life a hell.
SC No.131/13. Page 3 of 24
. (t is further case of the prosecution that the
prosecutri- had appeared in the police station on &'.1.!&1 and
submitted a written complaint to the S2=. She was ta5en to 776
2ospital for medical e-amination by S( 3aresh <umar and ?ady
*onst. *hhotu. =n return from the hospital, they met (nspector
/enu Sharma in the police station and handed over the written
complaint of the prosecutri- as well as her M?* to her. They also
handed over the e-hibits of the prosecutri- as well as sei8ure
memo to (nspector /enu Sharma. =n the basis of the complaint of
the prosecutri- and the contents of the M?* (nspector /enu
Sharma prepared ru55a and got the 9(/ registered. (nvestigation
was started by (nspector /enu Sharma, who prepared the site plan
of the spot of incident and sei8ed the e-hibits of the prosecutri-.
She recorded the statement of the witnesses. Accused Aftab Alam
came to be arrested. 2e made disclosure statement admitting is
guilt. 2e was got medically e-amined in 776 2ospital. Statement
of the prosecutri- u/s.1#+ *r.)* was got recorded. All the e-hibits
were sent to 9S? for forensic e-amination. The school record of the
prosecutri- was sei8ed which revealed her date of birth to be
&1.+.1''+ meaning thereby that she was between 1" to 1' years
of age at the time of first incident of rape.
+. After completion of the investigation, *harge Sheet
was prepared and submitted to the concerned (la>a Magistrate.
6pon committal of the case to the court of Sessions, *harges u/s.
!" ()*, u/s.$# ()* and u/s.%&# ()* were framed against the
accused on 1".+.!&1. The accused denied the charges and
accordingly trial was held. At trial, the prosecution e-amined 1#
SC No.131/13. Page 4 of 24
witnesses to prove the charges against the accused. The accused
was e-amined u/s.1 *r.)* on !+.+.!&1+ wherein he denied the
prosecution case and claimed false implication. The accused
e-amined three witnesses in his defence.
%. ( have heard ?d. A)) for State, ?d. *ounsel for the
accused and have perused the entire record.
#. ):1 has proved the school record of the prosecutri-
regarding her age. As per record proved by her, the date of birth
of the prosecutri- is &1.+.1''+. According to the prosecutri-, the
first incident of rape had ta5en place in the month of
=ctober/3ovember, !&1! which means that the prosecutri- was
more than 1" years of age at that time and thus a major.
$. The prosecutri- has been e-amined as ):. She
deposed that the accused is the son of their landlord and her
family is residing in the house of accused.s father as tenant at a
monthly rent of /s.,&&&/4. She has si- brothers and one sister.
She further deposed that accused used to come to their room to
receive rent. (nitially, he used to come once in a month but after
sometime, he started coming daily at about 1 p.m. when she was
alone in the house. Accused told her that he would teach her and
he taught her history for about three days in the month of
=ctober, !&1!. She further deposed that on 1'.$.!&1!, accused
came to her room at about +.& p.m. or %.& p.m. when she was
alone in the house. 2e was having a plastic bottle of cold drin5 in
his hand and as5ed her to 5eep it in the refrigerator. 2e left saying
that he would return in about half an hour or one hour. She usually
SC No.131/13. Page 5 of 24
remained alone in her house till about " pm. 2e told her that he is
going to 3ajafgarh. 2e returned after about half an hour and as5ed
her to bring the cold drin5 bottle and a glass, which she did. 2e
poured the cold drin5 in the glass and offered it to her. She
consumed the cold drin5 and after about five to si- minutes, she
was only semi conscious. Accused too5 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 ;ihar. 2e threatened her that if she narrated the
incident to anybody, he would 5ill her. Thereafter accused left
saying that he would ta5e her to somewhere the ne-t day.
". She further deposed that ne-t day at about " a.m.,
accused gave her a phone call and as5ed 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 too5 her
on the motorcycle to the house of his paternal aunt 0;ua1 ahead of
7haula <uan. (n that house a Maulvi was already present. Accused
signed a plain paper and also made her to sign the same. 2is
name was written on the paper as Arif s/o Man8oor Arif. Then
accused told her that their .3i5ah. has been performed and
thereafter he brought her to his house at 7abri. 2e 5ept her there
for about two hours and committed rape upon her five or si- times
SC No.131/13. Page 6 of 24
during that period. Thereafter he told her to go home. She told him
that why should she go home when their .3i5ah. has been
performed and she would stay in his house only. 2e 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.
2owever, the accused did not come to ta5e her. :henever 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 ta5e
her to the house of his friend at 7abri where also he used to rape
her.
'. She further deposed that on &'.&1.!&1, the accused
called her and as5ed her to reach the house of friend at 7abri, but
she did not go there. Accused told her that if she would stay with
him, she shall have to do whatever he as5s 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
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. &'.1.!&1 she alongwith her elder brother Munna @ureshi
went to the police station and submitted a written complaint which
is A-.):/A. 9rom the police station she was ta5en to hospital for
medical e-amination. 3e-t day, she was brought to the court
SC No.131/13. Page 7 of 24
where her statement u/s.1#+ *r.)* was recorded, which she
proved as A-.):/;. 9rom the court, she too5 police officials to the
house of the accused where the accused was arrested in her
presence vide arrest memo A-.):/*. She was declared hostile
by ?d. A)) and in the cross e-amination conducted by ?d. A)), 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
solemni8ed any marriage with her and that all this was a 7rama.
2e 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 ta5ing her to the house of his friend at ;indapur as mentioned
by her in his statement u/s.1#+ *r.)* A-.):/;. 2owever, she
admitted that the accused used to ta5e her to his friend.s house
almost daily and used to have se- with her on the prete-t of being
married to her.
1&. (n the cross e-amination, she deposed that the house,
in which they resided is three storeyed and the whole house is in
their occupation. =nly 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. 2er father has never paid rent himself to
the landlord. She had paid rent on two occasions to the father of
the accused and about % to # times to the accused. She deposed
SC No.131/13. Page 8 of 24
that the accused had told her that he is pursuing ;.A. *ourse and
is in the final year. She did not 5now that he is 1!
th
fail and that his
subjects were *ommerce. 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 =ctober, !&1!. She further deposed
that on 1'.$.!&1! she was present alone in the house at +.& p.m.
2er father had gone for wor5. 2er mother also had gone for wor5
as she leaves at " a.m. and returns at " p.m. or ' p.m. 2er sister
had gone for tuition classes as she returns from tuition classes at
about # p.m. or #.& p.m. 2er brothers <asim and Baved had gone
on tour as they drive tourist buses. 2er another brother 3a8im had
gone alongwith her father to sell vegetables. 2er brother Mousim
had gone to school as his school timings are 1! pm. to #.& p.m.
and returns home at $ p.m. 2er another brother 2asim had gone
to tuition classes as his tuition timings are from ! p.m. to % p.m.
She did not 5now where her si-th brother Aftab had gone at that
time. 2is 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 drin5 bottle and
glass from the fridge upto that room and she consumed the cold
drin5 there only. :hen the accused had come to their room and
handed over the cold drin5 bottle to her, she did not as5 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. (n between two visits of the accused to their house on the
date of incident, her brother 2asim had come there and left again
SC No.131/13. Page 9 of 24
after 5eeping his bag on the first floor. 3obody else had come to
the house during that period. She did not 5now who amongst her
family members returned home first after the incident.
1!. She further deposed that on the ne-t day of the
incident, she left home for school as usual at $ a.m. and accused
met her in the gali outside their house. 2e told her not to go to the
school as he would ta5e her for an outing after ".& a.m. when her
mother would have left for wor5. Accordingly, she did not go to
school and returned home. According to her, she as well as her
sister Cul8ar studied in the same class i.e. 1!
th
class and in the
same school and usually leave for school together. 2owever, she
added that her sister leaves home for school after her as she
wa5es up late and they do not meet each other in the school even
during the lunch brea5. 2er sister goes for her computer classes
daily from the school itself and also attends Anglish Spea5ing
*ourse on alternate days and therefore, they do not come home
together from school. 2er sister used to return home daily at #
p.m. or #.& p.m. after ta5ing her e-tra tuition classes. She had a
separate mobile phone bearing no.$"!$1""+"% and her sister had
a separate mobile phone. =n !&.$.!&1!, she left home alongwith
accused between ".& a.m. and '.& a.m. At that time only, her
brother 2asim was present in the house but she did not inform him
that she is leaving with the accused. (n reply to the court >uestion,
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 as5ed her to go home. 2owever, she did
not tell them that accused would be coming to ta5e her alongwith
him at about ".& a.m. and she would go with the accused for an
SC No.131/13. Page 10 of 24
outing.
1. She further deposed that she had seen the accused
ma5ing 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
2imalaya 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
ta5e her on his motorcycle from her tuition classes after every ! or
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 5nowledge
after !&.$.!&1!. She deposed that she has ban5 account in )3;,
3ana5pura. She admitted that she had gone to the ban5 alongwith
accused on one occasion only i.e. !&.$.!&1! as her mother had
given some money to her to deposit the same in her account. =n
that day, accused dropped her at home at about ! p.m. and
nobody was present in her house at that time. She denied that she
had visited )3;, 3ana5pura, again alongwith accused on
!.$.!&1!. She deposed that a person named Munna is also living
with them since his childhood and she treats him as his brother.
2e is an electrician and on the date of incident had left for Bama
Masjid at $ a.m. and returned at $.& 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 tal5 to the father of the accused. She
did not 5now whether Seema had tal5ed to the accused and his
SC No.131/13. Page 11 of 24
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 *7 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 *7
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, 3iyamat, an ac>uittance of the
father of the accused, had called her to his house. :hen she
reached his house, the father and brother of the accused were
present there and 3iyamat as5ed her whether she would li5e 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 5now 3iyamat before that date. She had gone to the house of
3iyamat alone. She denied that she made several calls to 3iyamat
as5ing him to meet her regarding this case and pursuant to those
calls, the aforesaid meeting was fi-ed. She did not tell anybody at
her home that she had received calls from 3iyamat 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 3iyamat at that time, but
had ta5en considerably a long time to answer this >uestion. She
denied that the meeting was arranged at the instance of Seema
and herself and further stated that she does not 5now whether
Seema was present there.
1+. She further deposed that she had told her mother that
SC No.131/13. Page 12 of 24
she had gone to the ban5 alongwith accused on !&.$.!&1! 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
solemni8ed 3i5ah with her at the house of her parental aunt on the
same day i.e. !&.$.!&1! and it was a 9riday. She did not visit the
ban5 alongwith accused on any day after !&.$.!&1!. 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.1#+ *r.)* that the accused came to their house on &'.1.!&1
and as5ed 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 3i5ah has been performed with the accused and she
considers herself as his wife. 2owever, she has not filed any legal
proceedings against the accused claiming her rights as his wife.
She denied that on &'.1.!&1 a >uarrel had ta5en 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 ;indapur only two
times though she has mentioned in her statement u/s.1#+ *r.)*
A-.):/; that accused used to ta5e her to his friend.s house at
;indapur daily.
1%. The mother of the prosecutri- has been e-amined as
SC No.131/13. Page 13 of 24
):+. 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 prosecutri- had told her that the accused
had beaten her and raped her repeatedly. )rosecutri- had also
told her that the accused had 5ept her as his wife. (n the cross
e-amination, she deposed that being illiterate, she does not 5now
about date and month when the accused had beaten and raped
her daughter. She used to sell Mango sha5e on a /ehri from " a.m.
or ' a.m. upto $ p.m. or " p.m. According to her, the prosecutri-
used to leave for school at $ a.m. and used to return at 1.& p.m.
after which she used to go to tuition classes wherefrom she
returned at about # p.m. She did not 5now whether prosecutri-
had accompanied the accused to any place on any day. She used
to give money to the prosecutri- to deposit the same in her ban5
account in )3;, 7haula <uan, but she could not tell whether the
prosecutri- visited ban5 alongwith some other person also. She
deposed that the prosecutri- told her about the acts of accused on
the date when >uarrel too5 place between them. She could not tell
the date and month when the >uarrel had ta5en place. 2owever,
she was not present in the house at the time of >uarrel. :hen she
returned home on that day, >uarrel was still going on and it was
regarding the rent of house. She did not 5now whether any 3i5ah
has been solemni8ed between the prosecutri- and the accused.
She admitted that they have not vacated the house despite being
told by accused.s father to vacate the same.
1#. (t is a trite law that in cases involving offence of rape,
the accused can be convicted on the basis of sole testimony of the
prosecutri- provided the same appears to be credible and
SC No.131/13. Page 14 of 24
trustworthy and inspires confidence of the court. (f for some
reason, the court is not inclined to place implicit reliance upon the
testimony of the prosecutri-, it may loo5 for corroboration from
the other evidence on record. Since the accused can be held guilty
on the sole testimony of the prosecutri- and the offence of rape
being a very serious one which entails even life imprisonment, it is
the duty of the court to scrutini8e the testimony of the prosecutri-
very minutely. (t is to be borne in mind that the testimony of the
prosecutri- should not suffer from any embellishments or
prevarications and she should >ualify as a sterling witness so that
the court can place reliance and trust upon her testimony. (t is also
to be noted that the li5e 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.
1$. (n the instant case, according to the prosecution, the
accused had committed rape upon the prosecutri- for the first
time on 1'.$.!&1! after ma5ing her unconscious by adminstering
some stupefying substance mi-ed in cold drin5.
1". (t is important to note here that the prosecutri- has
not mentioned the date, month and year, on which she was raped
by the accused after ma5ing her unconscious, either in her
complaint A-.):/A or in her statement u/s.1#+ *r.)* A-.):/;.
The date has been mentioned by the prosecutri- for the first time
in her testimony before this court as 1'.$.!&1!. There is no
e-planation from her as to why she did not mention the date in her
SC No.131/13. Page 15 of 24
complaint A-.):/A and statement A-.):/;. This creates a doubt
in the mind of the court regarding veracity of testimony of the
prosecutri- in this regard.
1'. (t has been deposed by the prosecutri- that on
1'.$.!&1!, the accused came to her room at about +.& p.m. or
%.& p.m. when she was alone in the house. Accused was having a
plastic bottle of cold drin5 in his hand and as5ed her to 5eep the
same in the refrigerator. 2e left saying that he would return after
about half an hour or one hour. Accused returned after about half
an hour and as5ed her to bring the cold drin5 bottle and one glass.
2e poured the cold drin5 in the glass and offered it to her. She
consumed the cold drin5 and after about % to # minutes, she was
only semiconscious. Accused too5 her to the room on the second
floor. She became fully conscious after about ! 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 5ill her. Thereafter, accused left after saying
that he would ta5e her somewhere else the ne-t day.
!&. Thus according to the deposition of the prosecutri-,
she consumed cold drin5 offered to her by the accused at about %
p.m. or # p.m. whereafter she became unconscious. She regained
consciousness at about " p.m. or ' p.m. (n the cross e-amination,
she has deposed that her mother usually returns home at about "
p.m. or ' p.m. and her sister also returns home from tuition
classes at about # p.m. or #.& p.m. 2er brother Mohsin also used
SC No.131/13. Page 16 of 24
to return home at about $ p.m. and another brother 2asim used to
return home from tuition classes at about % p.m. She has also
deposed that her foster brother Munna had returned home at $.&
p.m. on that day. Therefore, it is evident that the mother, the two
brothers of the prosecutri- and Munna would have returned home
during the period she was unconscious and being se-ually
assaulted by the accused and they would have noticed the
incident. The mother of the prosecutri- appearing as ):+ has
stated nothing about the said incident. 2er two brothers Mohsin
and 2asim as well as her foster brother Munna have not been
e-amined by the prosecution. (t is to be noted that the prosecutri-
has nowhere deposed that her mother and the two brothers
Mohsin and 2asim did not return home on their usual time on
1'.$.!&1!.
!1. 2ad the incident of rape, as alleged by the prosecution
been true, all the aforementioned persons would have noticed and
discovered the prosecutri- 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 unli5ely that any
incident of rape had ta5en place with the prosecutri- on 1'.$.!&1!
as mentioned by her. 9urther the conduct of the prosecutri- also
does not appear to be >uestionable. She used to allow entry to the
accused to her room almost daily at about 1 p.m. when she was
present alone in the house. =n the date of incident also, she did
not refuse entry into her room to the accused. She readily
accepted the cold drin5 bottle from the accused and 5ept the
same in the refrigerator as directed by him. She consumed the
cold drin5, offered to her by the accused, without any hesitation.
SC No.131/13. Page 17 of 24
She did not tell the accused to go away as she is alone and her
parents are not present in the house. She did not disclose the
incident to any of her family members on that day, though she has
tried to e-plain that the accused had threatened her not to narrate
the incident to anybody or otherwise, he would 5ill her. 2owever,
this is an improvement upon her earlier statement as she did not
mention in her complaint A-.):/A that accused had threatened
her. (n that complaint, she has stated that the accused told her
that he loves her and wants to marry her. <eeping in view the
aforementioned circumstances established on record, it is very
difficult to believe that the accused had subjected the prosecutri-
to rape after ma5ing her unconscious on the date and at the time
as mentioned by the prosecutri-.
!!. 9urther conduct of the prosecutri- in accompanying
the accused voluntarily and willingly on the ne-t day is also highly
unnatural and goes against the prosecution case. (t beats all
imagination to say that a rape victim would voluntarily accompany
the rapist on the subse>uent date after the incident of rape.
Avidently, the accused had neither forced nor threatened the
prosecutri- to accompany him on !&.$.!&1!. 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 5ind 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. 1'.$.!&1!
or otherwise she would have shown utmost reluctance and
hesitation in accompanying him on !&.$.!&1!.
SC No.131/13. Page 18 of 24
!. (t is the case of the prosecution itself that the accused
performed 3i5ah with the prosecutri- in the house of his paternal
aunt 0;ua1 in presence of a Molvi on !&.$.!&1!. Thus the
prosecutri- and the accused were legally wedded husband and
wife from !&.$.!&1! and the physical relations between the two
thereafter, even if against the consent of the prosecutri-, do not
tantamount to offence of rape. The prosecutri- has herself
deposed in her e-amination in chief that the accused performed
3i5ah with her on !&.$.!&1!. Thereafter when he told her to go
home, she as5ed him why she should go home when their 3i5ah
has been performed and she should stay in his house only, upon
which the accused told her that she would have to go home for
some period of time, during which he would arrange
accommodation on rent and then they would start residing there
together. She has reiterated in her cross e-amination that her
3i5ah has been performed with the accused and she considers
herself as his wife. (n view of said clearcut statement of the
prosecutri-, there is no difficulty to hold that the se-ual
intercourse between her and the accused after !&.$.!&1! does not
come within the ambit of offence of rape.
!+. ( may note here that the accused has denied that he
was with the prosecutri- on !&.$.!&1! or had solemni8ed 3i5ah
with her. There is no evidence on record regarding the 3i5ah
between prosecutri- and accused e-cept the statement of
prosecutri-. The Moulvi who performed the 3i5ah has not been
found out and e-amined as a witness. 3o in>uiries appear to have
been made by the (= from the paternal aunt 0;ua1 of accused in
whose house, the 3i5ah is stated to have been solemni8ed. She
SC No.131/13. Page 19 of 24
has not been produced as a witness. The (= has made no attempt
to locate that house where the 3i5ah is stated to have been
solemni8ed. Aven the fact that the accused was with the
prosecutri- on !&.$.!&1! is doubtful. The prosecutri- has deposed
in her cross e-amination that her brother 2asim was present in the
house, when she left alongwith accused on !&.$.!&1! at ".& a.m.
(ntriguingly, 2asim has not been e-amined as a witness. She then
deposed that she alongwith the accused has gone to )3;,
3ana5pura also on that day to deposit money in her ban5 account
which had been given to her by her mother. 2owever, the
statement of account of the prosecutri-.s ban5 account A-.7:1/A
proved by 7:1 shows that no money was deposited in the said
account on !&.$.!&1!. A sum of /s.1%,&&&/4 in cash has been
deposited in it on !.$.!&1!. Thus the version of prosecutri-
regarding the events dated !&.$.!&1! including solemni8ation of
3i5ah with the accused appears to be unconvincing and doubtful.
The fact that the prosecutri- did not reveal the factum of 3i5ah to
her family members, also ma5es her version unbelievable.
!%. 2ence it is important to determine whether the
prosecutri- and accused had indulged in physical relations on or
after !&.$.!&1! and if so, whether those were consensual or
against the consent of the prosecutri-.
!#. Aven if it is assumed that no 3i5ah was performed
between the prosecutri- and the accused on !&.$.!&1! still ( do
not find any convincing evidence on record to demonstrate that
the accused had raped her on or after !&.$.!&1!. The prosecutri-
has deposed that after the performance of 3i5ah on !&.$.!&1! the
SC No.131/13. Page 20 of 24
accused too5 her to his home where he raped her % or # times
during the period of two hours and then told her to go home. (t
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. :hether they
declared the factum of 3i5ah to the family members of the
accused present there at that time. She does not say whether the
acts of se-ual intercourse were forcible or she simply subjected
her body to the accused on the belief that she is her wife. 9urther
she has not shown to the (nvestigating =fficer the room in the
house of the accused where he had raped her on !&.$.!&1! and
hence the site plan of the said room has not been prepared by the
(=. (n view of these discrepancies, it is very difficult to believe that
the accused had raped the prosecutri- on !&.$.!&1!.
!$. The prosecutri- has further deposed that the accused
used to ta5e her to the house of her friend at ;indapur where also
he raped her. This too appears to be one line vague statement.
She has not e-plained 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 A-.):/A. (n the
statement u/s.1#+ *r.)* A-.):/; she has stated for the first time
that accused used to ta5e her to the house of his friend at
;indapur daily where he used to have se-ual intercourse with her.
Apparently, these incidents of se-ual intercourse appear to be
consensual. (n the cross e-amination, she has deposed that the
accused too5 her to his friend.s house at ;indapur only two times.
SC No.131/13. Page 21 of 24
The prosecutri- did not show that house to the (nvestigating
=fficer and she has not e-plained any reason for the same. That
friend of the accused has not been interrogated by the police.
*onsidering the overall circumstances, the deposition of the
prosecutri- 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 ;indapur.
!". (t is very intriguing that the prosecutri- did not reveal
to her parents and brothers that she had performed 3i5ah with the
accused, when she was neither any threat or any pressure from
the accused in this regard. (n fact the reason for filing complaint
against the accused on &'.1.!&1 does not appear to be that
accused was avoiding to ta5e her into matrimonial fold despite
.3i5ah..
!'. The defence put forth by the accused right from the
beginning is that the prosecutri- 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 7:!
has reiterated the same. This defence ta5en by the accused
appears to be probable and plausible. Admittedly, the family of the
prosecutri- is residing as tenant in the house of prosecutri-.s
father and have not paid rent for a very long time and have not
vacated the same despite being as5ed to do so.
&. (t has also come in the cross e-amination of
prosecutri- that she had gone to the house of one 3iyamat for the
settlement tal5s with accused.s brother and father. She has
SC No.131/13. Page 22 of 24
avoided straight answers to the >uestions 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 5now 3iyamat before that date indicate
that the meeting was arranged at her instance by Seema as she
wanted some settlement with the accused.
1. 2aving regard to the nature of testimony of the
prosecutri- as discussed herein above and the defence put forth
by the accused, which stands corroborated by the testimony of
7:!, this court is not inclined to believe the version of the
prosecution. The testimony of the prosecutri- is suspicious and far
from being credible or trustworthy. The defence of the accused
seems to be more probable. The Supreme *ourt has way bac5 in
the year !&&$ in R#8/! >$. S*#*" o+ 0.P., &%%) 1& SCC ())
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 D
EThe 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 ma5e a
false charge of rape either to ta5e revenge or e-tort
money or to get rid of financial liability. :hether there
was rape or not would depend ultimately on the facts
and circumstances of each case.F
SC No.131/13. Page 23 of 24
!. <eeping 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 ac>uitted of all the
charges.
Anno!n:"8 in o6"n (VIRENDER BHAT)
Co!2* on %(.5.&%1'. A88-. S"$$ion$ J!8;"
(S6":i#- F#$* T2#:A Co!2*)
DB#2A# Co!2*$, N"B D"-/i.
SC No.131/13. Page 24 of 24