State vs . 1. Nadeem Khan on 20 July, 2015

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Delhi District Court

State vs . 1. Nadeem Khan on 20 July, 2015

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                                                                                          FIR No. 180/12
                                                                                      PS - Aman Vihar



    IN THE COURT OF SH. MAHESH CHANDER GUPTA : 
   ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK 
    COURT : NORTHWEST DISTRICT : ROHINI : DELHI

SESSIONS CASE NO. :  188/13
Unique ID No.       :   02404R0271152012
PP
State         Vs.               1.  Nadeem Khan
                                     S/o Saleem Khan
                                     R/o House No. F7/261,
                                     Sultan Puri, Delhi.

                                         2.  Marzina @ Jyoti
                                              W/o Raj Kumar,
                                              R/o House No. F7/261,
                                              Sultan Puri, Delhi.

FIR No.         :  180/12
Police Station  :  Aman Vihar
Under Sections  :  328/376/34 IPC



Date of committal to session Court       :     08/10/2012

Date on which judgment reserved          :     13/07/2015

Date on which judgment announced :             20/07/2015



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                                                                                               FIR No. 180/12
                                                                                           PS - Aman Vihar




J U D G M E N T

1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 03/07/2012 complainant/Prosecutrix (name withheld being a case u/s 376 IPC) D/o Md. Hasin R/o House No. A794, Hari Enclave, near Chotti Masjid, Kirari, Suleman Nagar, Delhi with her father Mohd. Hasin and mother Shakeela Bano came to the Police Station and in the presence of NGO Ms. Shashi Sharma (Nari Bal Vikas Sanstha), made the statement to SI Anita Sharma which is to the effect that, she lives with her parents at the above address. In the said house, about three years back, Nadeem alongwith his wife and three children was living on rent and at about 1½ years back when Nadeem was arrested in a theft case by the Police then they came to know that he is a person of criminal nature and at that time wife of Nadeem had gone away after vacating the tenanted premises (Makaan Khali Kar Ke Chali Gai Thi). On 19/06/2012, at about 11:00 a.m. one lady who told her name as Marzina came to her house and told her that her good result has 2 of 153 3 FIR No. 180/12 PS - Aman Vihar come (Aapka Achha Result Aaya Hai) and she has been called by the Madam in the School. She (prosecutrix) left with her (Mai Us Ke Saath Saath Chal Di) and when that lady started taking her on a different way to the School (Jab Weh Aurat Mujhe School Ke Alag Raste Par Le Jane Lagi) then she (prosecutrix) said to her, Aunty the way to the School is not from this way, on which she (Marzina) said to her that, one more girl is also to be taken to the School, on which she (prosecutrix) went following her (Mai Uske Piche Piche Chal Pari) and after crossing the bylanes (Galiyan) she (Marzina) took her (prosecutrix) in a house where Nadeem, who had lived as a tenant in her (prosecutrix) house, Maulvi and one Hanif were found present. When Nadeem was living on rent in her (prosecutrix) house then Hanif used to come to meet him and for this reason she (prosecutrix) was knowing his (Hanif) name. She refused Nadeem, Hanif, Marzina and Maulviji for the acceptance (Kabool) of Nikah (Marriage) but Maulviji, without her acceptance (Kabool) of Nikah forcibly got performed her Nikah (marriage) with Nadeem. Nadeem made her drink, cold drinks and she became unconscious (Nadeem Ne Mujhe Cold Drinks Pilai, Mai Behosh Ho Gai) and when she regained consciousness, she and Nadeem were naked (Nirvastar).

3 of 153 4 FIR No. 180/12 PS - Aman Vihar Nadeem told her ''whatever I wanted, all I have got. I have made physical relations with you'' (Jo Mujhe Chahiye Tha, Mujhe Sab Mil Gaya. Maine Tumhare Saath Shaaririk Sambandh Banaye Hain). After sometime, Nadeem went out of the house. On finding an opportunity, she came to her house and disclosed all the incident (Daastan) to her Ammi (mother) and Abbu (father). Because of the fear of Nadeem, her family members had kept her inside the house and today on 03/07/2012, she alongwith her father and mother has come to the Police Station and got recorded her statement. Nadeem in collusion with Hanif, Marzina and Maulviji, after forcibly getting performed Nikah (marriage) with her without her consent and after making her unconscious by administering her an intoxicated cold drink, has made physical relations with her, without her consent. Legal action be taken against them. The statement has been heard and is correct. Prosecutrix was got medically examined from SGM Hospital vide MLC No. 10321/12 and on the MLC the Doctor has endorsed 'Alleged history of sexual assault and hymen torn'. On the basis of the statement and from the inspection of the MLC, finding that offences u/s 328/376/34 IPC appeared to have been committed, the case was got registered and the investigation was 4 of 153 5 FIR No. 180/12 PS - Aman Vihar proceeded with by SI Anita Sharma. During the course of investigation site plan was prepared at the instance of the prosecutrix. The sealed exhibits of the prosecutrix handed over by the Doctor after her medical examination were taken into Police possession and were deposited in the Malkhana. Statements of the witnesses were recorded. On 03/07/2012, accused Nadeem Khan was arrested. His medical examination was got conducted and the sealed exhibits handed over by the Doctor after his medical examination were taken into Police possession and were deposited in Malkhana. The sealed exhibits were sent to the FSL, Rohini. SI Anita Sharma being on leave, further investigation of the case was handed over to SI Suman Kumari. Coaccused were searched for who were absconding and were evading arrest. NBWs were obtained against them. On their arrest supplementary chargesheet will be presented. After returning from leave, investigation was handed over to SI Anita Sharma. SI Anita Sharma obtained the Birth Certificate and certified copy of the School Admission Record of the prosecutrix. Statement of the witnesses were recorded.

Upon completion of the necessary further investigation challan for the offences u/s 328/376/34 IPC was prepared against 5 of 153 6 FIR No. 180/12 PS - Aman Vihar accused Nadeem Khan and was sent to the Court for trial.

2. Since the offences under sections 328/376 IPC are exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.

3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 366/34 IPC and under sections 328/376 IPC was made out against accused Nadeem Khan. Charge was framed accordingly on 25/10/2012, which was read over and explained to the accused Nadeem Khan to which he pleaded not guilty and claimed trial.

4. During the course of further investigation accused Marzina @ Jyoti was arrested and supplementary challan for the offences u/s 328/376/34 IPC was prepared against her and after compliance of the provisions of Section 207 Cr.P.C., the case against accused Marzina @ Jyoti was committed to the Court of Session u/s 209 Cr.P.C.

6 of 153 7 FIR No. 180/12 PS - Aman Vihar

5. Upon committal of the case against accused Marzina @ Jyoti to the Court of Session and after hearing on charge, prima facie a case u/s 366/34 and u/s 376 r/w Section 109 IPC was made out against accused Marzina @ Jyoti. Charge was framed accordingly which was rad over and explained to the accused Marzina @ Jyoti, to which she pleaded not guilty and claimed trial.

6. In support of its case prosecution has produced and examined 15 witnesses. PW1 Constable Mohit, PW2 HC Arjun Singh, PW3 - Constable Sushil, PW4 W/Constable Samanta, PW5 HC Surender, PW6 Constable Deepak, PW7 Mrs. Poonam Sharma, SSO (Biology), FSL, Rohini, Delhi, PW8 Mohd. Aziz, Assistant Teacher, Sarvodya Kanya Vidaylya, H Block, Sultan Puri, Delhi, PW9 Dr. Savita, Sr. Resident, SGM Hospital, Mangol Puri, Delhi, PW10 Constable Charan Singh, PW11 W/Constable Sanju, PW12 Mrs. Shakila Bano, W/o Mohd. Hasin Khan, PW13 - Prosecutrix (name withheld), PW14 SI Suman and PW15 SI Anita Sharma.

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7. In brief the witnessography of the prosecution witnesses is as under : PW1 Constable Mohit, who tendered his examinationin chief by way of affidavit Ex. PW1/1, bearing his signatures at points 'A' and 'B' in which he has deposed that on 03/07/2012 he joined the investigation with SI Anita Sharma and got the accused Nadeem medically examined and after his medical examination, his MLC and the sealed pullindas as were handed over by the Doctor were given to the IO SI Anita Sharma which were taken into Police possession.

PW2 HC Arjun Singh who tendered his examinationin chief by way of affidavit Ex. PW2/1, bearing his signatures at points 'A' and 'B' in which he has deposed that he was working as Duty Officer on 03/07/2012 at PS Aman Vihar from 4:00 p.m. to 12:00 night and proved the copy of FIR Ex. PW2/A and his endorsement on rukka Ex. PW2/B, bearing his signature at point 'A'.

PW3 Constable Sushil who tendered his examinationin chief by way of affidavit Ex. PW3/1, bearing his signatures at points 'A' 8 of 153 9 FIR No. 180/12 PS - Aman Vihar and 'B' in which he has deposed that on 03/07/2012 he joined the investigation with SI Anita Sharma and proved the seizure memo of the sealed exhibits of accused Nadeem Ex. PW3/A, bearing his signature at point 'A', arrest memo of accused Nadeem Ex. PW3/B, his personal search memo Ex. PW3/C and his disclosure statement Ex. PW3/D, bearing his signatures at point 'A'.

PW4 W/Constable Samanta who tendered her examinationinchief by way of affidavit Ex. PW4/1, bearing her signatures at points 'A' and 'B' in which she has deposed that she joined the investigation on 03/07/2012 with SI Anita Sharma and got the prosecutrix medically examined at SGM Hospital and proved the seizure memo of the sealed exhibits of prosecutrix Ex. PW4/A, bearing her signature at point 'A'.

PW5 HC Surender who tendered his examinationinchief by way of affidavit Ex. PW5/1, bearing his signatures at points 'A' and 'B' in which he has deposed that on 25/07/2012 he was working as MHC(M) and proved the copies of the relevant entries of Register No. 19 9 of 153 10 FIR No. 180/12 PS - Aman Vihar Ex. PW5/A, Ex. PW5/B, copy of the RC No. 150/21/12 of Register No. 21 Ex. PW5/C and the copy of the acknowledgment receipt of FSL Ex. PW5/D. PW6 Constable Deepak who tendered his examinationin chief by way of affidavit Ex. PW6/1, bearing his signatures at points 'A' and 'B' in which he has deposed that on 25/07/2012 after taking the sealed exhibits from the MHC(M) he deposited the same in FSL Rohini vide RC No. 150/21/12, copy of which is Ex. PW5/C, bearing his signature at point 'A' and the copy of the acknowledgment receipt of FSL Ex. PW5/D, bearing his signature at point 'A'.

PW7 Ms. Poonam Sharma, SSO, Biology FSL, Rohini who proved the Biological Report Ex. PW7/A and the Serological Report Ex. PW7/B, bearing her signatures at point 'A'.

PW8 Mohd. Aziz, Asstt. Teacher, Sarvodya Kanya Vidaylya, H Block, Sultan Puri Delhi who deposed that he has brought the summoned record pertaining to the prosecutrix (name withheld) D/o 10 of 153 11 FIR No. 180/12 PS - Aman Vihar Mohd. Hasin Khan. According to the School record, prosecutrix (name withheld) was admitted in the School in 1st Class on 17/04/1996 on the basis of MCD Birth Certificate showing the date of birth of prosecutrix as 27/12/1990, copy of the said certificate is Ex. PW8/A. The copy of admission and withdrawal register in this regard, showing the relevant entry at Serial No. 286 is Ex. PW8/B. Copy of the Admission Form is Ex. PW8/C (running into two pages). Copy of Registration Form is Ex. PW8/D (original seen and returned).

PW9 Dr. Savita, Sr. Resident, SGM Hospital, Mangol Puri, Delhi, who deposed that on 03/07/2012, at about 7:45 p.m., one prosecutrix (name withheld) D/o Mohd Harim (Hasin) Khan, female 21 years old was brought by W/Constable Samanta was medically examined by the Doctor at casualty vide MLC No. 41961 which is Ex. PW9/A and she was referred to the Gynae Department for further examination. In the Gynae Department, she medically examined the above said prosecutrix (name withheld) with alleged history of sexual assault on 19/06/2012 by Nadeem as given by her After medical examination, she gave her observation at point encircled 'X' to 'X1'on MLC Ex. PW9/A 11 of 153 12 FIR No. 180/12 PS - Aman Vihar bearing her signature at point 'A'. As per vaginal examination, Hymen was found torn, She took the exhibits and handed over the same to the Police in sealed condition with the seal of Hospital with sample seal.

PW10 Constable Charan Singh, who deposed that on 25/11/2012, he was posted as Constable at Police Station Aman Vihar and he had joined the investigations alongwith ASI Anita (SI Anita) and Lady Constable Sanju. On that day, they went to the house of the complainant from where they accompanied the complainant/prosecutrix and her mother went to F7, Sultan Puri. There they met the accused Marzina (correctly identified) and on the pointing out of the complainant/prosecutrix IO ASI Anita (SI Anita) arrested the accused Marzina vide arrest memo Ex. PW10/A bearing his signatures at point 'A', signatures of Lady Constable Sanju at point 'B', signatures of the IO ASI Anita (SI Anita) at point 'C' and thumb impressions of the accused at point 'D'. Her personal search was also conducted vide memo Ex. PW10/B bearing his signatures at point 'A', signatures of Lady Constable Sanju at point 'B', signatures of the IO ASI Anita (SI Anita) at point 'C' and thumb impressions of the accused at point 'D'. Thereafter, she was 12 of 153 13 FIR No. 180/12 PS - Aman Vihar interrogated and a disclosure was recorded by the IO vide Ex. PW10/C. Thereafter, the accused Marzina was brought to the house of the prosecutrix wherein (where) the accused Marzina pointed out the house where she had called the prosecutrix on which the IO prepared the pointing out memo vide Ex. PW10/D bearing his signatures at point 'A'. IO also prepared the site plan. Thereafter, she was brought back to the PS from where he alongwith Lady Constable Sanju took her to SGM Hospital for her medical examination and brought her back to the Police Station after her medical. He was relieved from the Police Station. His statement was recorded in the Police Station.

PW11 W/Constable Sanju, who deposed that on 25/11/2012, she was posted at Police Station - Aman Vihar. On that day, she had joined the investigations alongwith IO/ASI Anita (SI Anita), Constable Charan Singh. They first left the Police Station and went to the house of prosecutrix (name withheld) and from there they picked up prosecutrix (name withheld) and her mother and went to F7/261, Sultan Puri. From outside the house prosecutrix (name withheld) and her mother pointed out a lady standing in front of F7/261 as Marzina 13 of 153 14 FIR No. 180/12 PS - Aman Vihar (correctly identified). On the pointing out of the complainant/prosecutrix IO ASI Anita (SI Anita) arrested the accused Marzina vide arrest memo already Ex. PW10/A bearing her signatures at point 'B'. Thereafter, the accused Marzina was brought to the house of the prosecutrix/complainant wherein (where) the accused Marzina pointed out the house where she had called the prosecutrix on which the IO prepared the pointing out memo vide already Ex. PW10/D bearing her signatures at point 'B', signatures of IO at point 'C', thumb impressions of accused Marzina at point 'D'. Thereafter, she was brought back to the PS from where she alongwith Constable Charan Singh took her to SGM Hospital for her medical examination and brought her back to the Police Station after her medical and she handed over the MLC of the accused to the IO. She was relieved form the Police Station thereafter. Her statement was recorded in the Police Station. During the leading questions put by the Learned Addl. PP for the State, after obtaining the permission of the Court she (PW11) deposed that it is correct that when the accused Marzina was arrested at F7/261, Sultan Puri, her personal search was also conducted by her vide memo already Ex. PW10/B bearing her signature at point 'B' and she (accused Marzina) 14 of 153 15 FIR No. 180/12 PS - Aman Vihar was thereafter interrogated by the IO and a disclosure was recorded by the IO vide Ex. PW10/C bearing her signatures at point 'A', signatures of the IO at point 'B' and the thumb impressions of the accused at point 'C'. Vol. She has forgotten these facts and therefore could not inform about the same.

PW12 Ms. Shakeela Bano is the mother of the prosecutrix who deposed that she is residing at the aforementioned address (House No. A - 794, Hari Enclave, Chotti Masjid, Kirari Suleman Nagar, Delhi) for the last one year where she is residing alongwith her family comprising of her husband and five children. Prior to this they were residing at H - 1/70, where they were residing on rent. House No. A794 is owned by her and was given on rent previously to the accused Nadeem about three years back where he was residing alongwith his family comprising of his wife and children. About 1½ years ago Nadeem was arrested by Police on account of theft and on coming to know that he is having criminal background, they got their house vacated. During this period when Nadeem stayed at their house with his family he used to come to their house to make the payment of rent and 15 of 153 16 FIR No. 180/12 PS - Aman Vihar one Hanif used to come with him. On 19/06/2012, she had gone to the Doctor alongwith her husband for getting medicines from where she went to Tis Hazari Court to meet her lawyer in connection with the private dispute with her neighbour. When she returned home, she did found (find) that her daughter/prosecutrix (name withheld) was not at home. She tried to search for her in the neighbourhood but could not find her. At around 5:00 p.m. her daughter/prosecutrix (name withheld) came home, she appeared to be extremely distorted and scared (ghabrai hui thi). Her daughter informed her that one lady by the name of Marzina had come to the house and informed her that she had come from the School and had been called by Madam in the School for the result. Thereafter, on the pretext of taking her to the School, Marzina took her daughter to her house. Her daughter/prosecutrix (name withheld) further informed her that there she found Nadeem alongwith Hanif and one Maulvi sitting there who without her consent forcibly got her married to Nadeem (Bina Uski Marji Ke Jabardasti Uska Nikah Kara Diya). Court Question : Who got the Nikah done? Ans :

Molviji. After the Nikah Nadeem gave cold drink to prosecutrix (name withheld). After taking cold drink she lost her conscious and after

16 of 153 17 FIR No. 180/12 PS - Aman Vihar regaining consciousness she found that both she and the accused Nadeem (correctly identified by the witness) were without clothes. Nadeem thereafter told her daughter that he had made physical relations with her and whatever he wanted he had got. (Maine Tere Sath Sharirik Sambandh Banaye Hain Aur Mujhe Jo Chahiyae Tha Mujhe Mil Gaya). Her daughter further told her that finding an opportunity when Nadeem was not at home, she escaped and came back home. When she came to know, what had happened she informed her husband about the same but for the fear of their reputation in the society and amongst their community they kept quite (Apni Izzat Ki Wajah Se Khamosh Rahe). However, when Nadeem started threatening them and her children they were compelled to report the matter to the Police on 03/07/2012. In the Police Station her daughter was counselled by the NGO after which her medical was got conducted and her statement was got recorded on the basis of which the case was registered. She can identify the accused Marzina, Hanif and also the Maulvi who got the Nikah of her daughter solemnized because he was staying in the Bari Masjid at H3, Sultan Puri and he used to come to their house to take Chanda/donations. She can identify Marzina because on one occasion Nadeem had sent her to 17 of 153 18 FIR No. 180/12 PS - Aman Vihar her house on two occasions on the pretext of taking the premises on rent but she had done (come) only to check if her daughter was still at home or not. Again said she had come once on Saturday and on the next day i.e. on Sunday at 11:00 a.m. Court observation : Hanif and Molvi had not been apprehended till date. She has correctly identified the accused Marzina who is present in the Court. Nadeem was arrested by the Police on 03/07/2012 on the pointing out of her and her daughter. Accused Marzina was arrested on 25/11/2012 on the pointing out of her daughter and she was also with her at that time. Her statement was recorded by the Police on two occasions i.e. one at the initial stage when the accused Nadeem was arrested and the other when the accused Marzina was arrested.

PW13 Prosecutrix is the victim who deposed regarding the incident and proved her statement made to the police Ex. PW13/A, bearing her signatures at point 'A' and signatures of the representative of the NGO at point B, her MLC Ex. PW9/A, bearing her thumb impression at point encircled 'X' and deposed on the investigational aspects which she joined and proved the arrest memo of accused 18 of 153 19 FIR No. 180/12 PS - Aman Vihar Nadeem Ex. PW3/B, his personal search memo Ex. PW3/C, bearing her signatures at point 'B', arrest memo of Marzina Ex. PW10/A, her personal search memo Ex. PW10/B, bearing her signatures at point 'E', pointing out memo of the house by accused Marzina from where she had called/taken the prosecutrix Ex. PW10/D, bearing her signature at point 'E'.

PW14 SI Suman, who deposed that in the month of July, 2012, she was posted as SI in PS - South Rohini. As the IO SI Anita Sharma had proceeded only (on leave) so the case file of the present case was marked to her from PS - Aman Vihar. She had perused the file and found that accused Nadeem Khan is running in JC. In the month of August, 2012, she got extended the JC remand of accused Nadeem Khan. She made search for other accused but they could not be arrested. On 11/09/2012, after getting extended the JC remand of accused Nadeem Khan, the file was handed over to MHC(R) for further investigation. Accused Nadeem Khan is present in the Court.

PW15 SI Anita Sharma is the Investigating Officer (IO) of 19 of 153 20 FIR No. 180/12 PS - Aman Vihar the case, who deposed that on 03/07/2012, she was posted as Sub Inspector in PS Sultan Puri. On that day, she was called at PS Aman Vihar. She reached in PS Aman Vihar where she met complainant/prosecutrix (name withheld) alongwith her mother Shakila Bano and her father Mohd. Hasim (Hasin). She recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW3/A (be read as Ex. PW13/A), bearing her signature at point 'A', attested by her at point 'C', in the presence of NGO Shashi Sharma who also signed the said statement at point 'B'. Thereafter, prosecutrix (name withheld) was sent to SGM Hospital through Lady Constable Samnta alongwith her mother for medical examination. Lady Constable Samnta alongwith prosecutrix came back in the PS and handed over to her the MLC and the pullindas containing the exhibits of the prosecutrix. She seized the pullindas vide seizure memo Ex. PW4/A, bearing her signature at point 'B'. She prepared rukka Ex. PW15/A, bearing her signature at point 'A' and handed over the same to Duty Officer for registration of the FIR. Thereafter, she alongwith complainant, Lady Constable Samnta and HC Sushil reached at A794, Hari Enclave, Suleman Nagar, from where Marzina @ Jyoti had taken away prosecutrix (name withheld) and she 20 of 153 21 FIR No. 180/12 PS - Aman Vihar prepared the site plan at the instance of prosecutrix and the same is Ex. PW15/B, bearing her signature at point 'A'. Thereafter, they reached at F7/261, Sultan Puri, Delhi and there at the instance of the complainant she prepared the site plan where accused forcibly married with her and committed rape upon her which is Ex. PW15/C, bearing her signature at point 'A'. Constable Mohit came at the spot and handed over to her the copy of FIR and original rukka. There at the instance of complainant she also apprehended the accused Nadeem, present in the Court. He was interrogated and arrested vide memo Ex. PW3/B, his personal search was conducted vide memo Ex. PW3/C and he made disclosure statement Ex. PW3/D, all bearing her signature at points 'X'. Accused Nadeem was sent to SGM Hospital through Constable Sushil and Constable Mohit for medical examination. She recorded statement of witnesses. She came back to Police Station. Constable Sushil alongwith Constable Mohit came at the PS and handed over to her the MLC of Nadeem and pullindas containing the exhibits, which she seized vide memo Ex. PW3/A, bearing her signature at point 'B'. Accused Nadeem was sent to Police lockup and case property was deposited in the Malkhana. She recorded the statement of witnesses. On 04/07/2012, accused Nadeem 21 of 153 22 FIR No. 180/12 PS - Aman Vihar was produced before the Court and sent to JC. On 25/07/2012, the exhibits were sent to FSL through Constable Deepak. She recorded the statement of Constable Deepak and MHC(M). She collected the age proof of prosecutrix from her School. She searched the remaining accused but they were not found. After completing the investigation, challan was prepared against accused Nadeem and filed in the Court. On 25/11/2012, she was present in the PS Aman Vihar. She received an information that accused Marzina @ Jyoti has been seen in the Gali of F 7, Sultan Puri. Thereafter, she alongwith Lady Constable Sanju and Constable Charan Singh reached at the house of complainant i.e. A794, Hari Enclave, Suleman Nagar and from there prosecutrix (name withheld), her mother Shakila Bano and father were joined in the investigation and thereafter they reached at F 7 Block, Sultan Puri and from the gali accused Marzina @ Jyoti was apprehended at the instance of complainant/prosecutrix (name withheld). She was interrogated and arrested vide arrest memo Ex. PW 10/A and her personal search was conducted vide memo Ex. PW10/B, bearing her signature at points 'C'. She made disclosure statement Ex. PW10/C, bearing her signature at point 'B'. Accused Marzina was medically examined and she was 22 of 153 23 FIR No. 180/12 PS - Aman Vihar brought to Police Station. She recorded the statement of witnesses. On the next day, Marzina @ Jyoti was produced in the Court and was sent to JC. On 20/11/2012, one Rashid Hamrahi has produced Nikahnama of prosecutrix (name withheld) and Nadeem which she seized vide memo Ex. PW15/D, bearing her signature at point 'A' and Nikhanama is Ex. PW155/D1 (be read as Ex. PW15/D1). She obtained the NBWs of Maluvi Mustafa and Hanif but they could not be arrested. She prepared the supplementary chargesheet against accused Marzina @ Jyoti and filed in the Court. Later on FSL Result was collected and filed in the Court. Accused Marzina @ Jyoti is present in the Court.

The testimonies of the prosecution witnesses shall be dealt with in detail during the course of the appreciation of evidence.

8. It is to be mentioned that on 25/10/2012, accused Nadeem made a statement on oath before the Learned Predecessor Court wherein he admitted his own MLC as Ex. PX1 and stated that he has 'no objection', if the concerned doctor is not examined as a witness.

23 of 153 24 FIR No. 180/12 PS - Aman Vihar

9. Statements of the accused Nadeem Khan and Marzina @ Jyoti were recorded u/s 313 Cr.P.C wherein, they pleaded innocence and false implication. Accused Marzina @ Jyoti did not opt to lead any defence evidence, however, accused Nadeem Khan opted to lead defence evidence and in his defence examined five defence witnesses namely, DW1 - Sh. Sanju, S/o Sh. Madan Lal Batra, R/o F - 139, DDA Flats, Sultan Puri, Delhi, DW2 - Sh. Idris, S/o Sh. Anwar Hussain, R/o A - 60, Hari Enclave, Aman Vihar, Delhi, DW3 - Sh. Mahender Singh, S/o Sh. Ram Kumar, R/o F - 2/298, Sultan Puri, Delhi, DW4 - Sh. Rasid, Sh. Mazhar Ali, R/o F - 7/71, Sultan Puri, Delhi and DW5 - Sh. Zahid, S/o Sh. Hamid Yar Khan, R/o H - 3/18, Sultan Puri, Delhi.

DW1 - Sh. Sanju, in his examinationinchief has deposed that : "I am running a tailoring shop no. 7, DDA Market, Sultan Puri in the name of Shraya Batra Ladies Tailor. On 12/02/2012 Nadeem had come along with one prosecutrix (name withheld) for giving the measurement of blouse stitching of prosecutrix (name withheld). I gave receipt of same bearing no. 433 dated 12/12/2012 and the delivery was to be made on 18/02/2012. I have brought the counter slip of the same, which is Ex. DW1/A. A small piece of cloth is stapled with the slip to verify the cloth at the time of delivery. I have seen the 10 photographs 24 of 153 25 FIR No. 180/12 PS - Aman Vihar Ex. PW12/DX3 to Ex. PW12/DX12 and I can identify that the CHOLI worn by the girl was stitched by me."

DW2 - Sh. Idris, in his examinationinchief has deposed that : "I am running an auto bearing no. DL1RG5150, which is in my name. I know the girl, shown in the photographs in Ex. PW12/DX3 to Ex. PW12/DX12. She is residing in our neighbourhood. Her brother is also an auto driver and I know the entire family personally through the brother of girl. The boy shown in the photographs was residing in their house as a tenant. I had taken the boy and the girl shown in the photographs in my auto a few times for touring purpose (INHEY GHUMANEY KE LIYE KAI BAR LEY GAYA THA) and had taken them to the doctor's clinic at Najafgarh road, which is situated towards the right hand side. I had taken them to the doctor's clinic for four/five times. Once I had taken them to Aggarwal Restaurant at Peeragari.

During the leading question put by the Learned Defence Counsel with regard to the specific date of the taking of the girl from the School to the Metro Station and from there to Shagun Restaurant, he deposed that : "Q. I put it to you that on 13.2.2012 you had taken the girl 25 of 153 26 FIR No. 180/12 PS - Aman Vihar from the school to the Metro Station and from there to Shagun Restaurant.

A. It is correct."

DW3 - Sh. Mahender Singh, in his examinationinchief has deposed that : "I am running a photo studio under the name and style of Bharat Studio at F 2/245, near Shani Bazar Road, Sultan Puri, Delhi86. I do not know any person by the name Nadeem. I can tell after going through the photographs if shown to me whether the photographs are clicked by me or not. I have been shown photographs Ex. PW12/DX3 to PW12/DX12. These photographs were clicked by me. These photographs were taken in the house, as is also been indicated in the background of the photos. At the time when I clicked these photographs, atmosphere in that house was of happiness."

DW4 - Sh. Rasid, in his examinationinchief has deposed that : "I know accused Nadeem and his family for the last 1015 years. Nikah of Nadeem has been performed in my presence with prosecutrix (name withheld) at the residence of accused Marjina R/o Sultan Puri, Delhi. At the time of marriage, around 1015 guests were present. At the time of their marriage, parents of the bride/prosecutrix (name withheld) were also present. I do not know the names of the parents of prosecutrix (name withheld). At the time of their marriage, 26 of 153 27 FIR No. 180/12 PS - Aman Vihar Zahid, Saleem and many others were present. Kaji who performed the marriage was also present whose name I do not recollect. The atmosphere was of happiness and all were very happy. I have been shown Nikahnama Ex. PW12/DX2 bearing my signature at point B encircled red."

DW5 - Sh. Zahid, in his examinationinchief has deposed that : "I am running a coffee and tea stall at house no. 29, Sultan Puri, Delhi. I know prosecutrix (name withheld). I know prosecutrix (name withheld) as she was a tenant in the house no. 19 as I recollect, in the neighbourhood of my house. I know accused Nadeen (Nadeem) as he was also the tenant in the neighbourhood of my house. On the day the marriage of prosecutrix (name withheld) and accused Nadeen (Nadeem) took place, the goods (Saman) was also sent from my shop (Saman Meri Dukan Se Lia Tha). I also know the family members of prosecutrix (name withheld). No one visited my shop on the date of marriage of Nadeen (Nadeem) and prosecutrix (name withheld) for taking the goods from my shop. Vol. I had sent the goods through my employee. I came to know about the marriage of accused Nadeen (Nadeem) and prosecutrix (name withheld) through the maulvi residing in the same street in which I reside. I had not attended the marriage of accused Nadeen (Nadeem) and prosecutrix (name withheld) but the marriage was got performed by maulana (Nikah Maulana Sahab Ne Padhaya Tha). Once or twice accused Nadeen (Nadeem) and prosecutrix (name withheld) had visited my shop/stall before and after their marriage. Vol. It is small shop on rent."

27 of 153 28 FIR No. 180/12 PS - Aman Vihar The testimonies of the defence witnesses shall be dealt with in detail during the course of appreciation of evidence.

10. Learned Counsel for accused Nadeem Khan submitted that the accused has been falsely implicated in the case by complainant and his family member in connivance with Police. Learned Counsel further submitted that the statement of PW13 prosecutrix has not been supported by another prosecution witness. The prosecutrix has stated that on 19.06.2012 she was forcibly married with the accused in the presence of one lady Marzina and Moulvi and also that she had taken a cold drink and after the drinking of colddrink she got unconscious, when she received conscious she found nude and the accused was standing there and he said that "JO MAINE PANA THA WO PA LIYA", When the prosecutrix returned to her mother and afraid of the accused, the prosecutrix and her family has not lodged the said complaint on the same day and they have lodged the complaint on 03/07/2012. Learned Counsel further submitted that the IO has not made any public witness while arresting the accused or confirming the fact whether the 28 of 153 29 FIR No. 180/12 PS - Aman Vihar prosecutrix was kept there or not or was there any such room in real or not. Learned Counsel further submitted that IO has not even made inquiries to any person in the spot/incident area. Learned Counsel further submitted that prosecutrix did not even tell the above said fact to her parents. It proves the afterthought manipulations in the present case with malafide intention to implicate the accused. Learned Counsel further submitted that there is no evidence on record which would prove the stay of prosecutrix at the places where she alleged to be stayed in her statement neither any enquiry about the same has been done by the IO. Learned Counsel further submitted that the medical of the prosecutrix was nil. Learned Counsel further submitted that the prosecutrix was major at the time of incident according to her date of birth certificate i.e, 27/12/1990. Learned Counsel further submitted that this case was of elopement. Learned Counsel further submitted that PW12 - Shakeela Bano, mother of the prosecutrix in her examinationinchief has stated that accused Nadeem was having criminal background but she has not given any proof regarding his criminal record at the time of evidence and she did not lodge the complaint against Smt. Marzina and Maulvi, after the incident. Learned Counsel further submitted that PW12 Shakeela 29 of 153 30 FIR No. 180/12 PS - Aman Vihar Bano has stated in her statement that, "MAINE TERE SAATH SHARIRIK SAMBANDH BANAYE HAI MUJHE JO CHAIYA THA WO MIL GAYA" while PW13 - prosecutrix has stated in her statement, "JO MAINE PANA THA WO PA LIYA", which are totally contradictory. Learned Counsel further submitted that PW12 Shakeela Bano has also admitted in crossexamination that at the time of incident the school of PW13 was closed and she also admitted in her crossexamination 'my daughter is shown to be dressed in Bridal Lengha and make up in all the photographs'. Learned Counsel further submitted that according to the statement of PW12 Shakeela Bano, PW13 Prosecutrix has got married with her own consent. Learned Counsel further submitted that PW13 Prosecutrix has never used the word of threat in her entire statement. Learned Counsel further submitted that PW13 - prosecutrix in her cross examination has stated that the result of 12th Class had been out before 19/06/2012 and the School was also closed but she voluntarily said that the admissions were going on in the School at that time. She cannot identify her signatures on Ex. PW12/DX2. She does not know who had brought the cold drink. Learned Counsel submitted that her said statement is contradictory to her statement u/s 161Cr.P.C. Learned 30 of 153 31 FIR No. 180/12 PS - Aman Vihar Counsel further submitted that the whole story of the PW12 and PW13 is totally false, frivolous, vexatious and contradictory. Learned Counsel further submitted that the prosecution has failed to prove the allegations against accused Nadeem Khan and prayed for the acquittal of accused Nadeem Khan on all the charges leveled against him.

11. Learned Counsel for accused Marzina @ Jyoti submitted that the prosecution has miserably failed to prove its case against the accused. Learned Counsel further submitted that both material witnesses have contradicted each other on major allegation that "Jo Kuch Maine Pana Tha Pa Liya" and "Maine Tere Sath Shararik Sambandh Banaye Hain Aur Mujhe Jo Chahiye Tha Mujhe Mil Gaya". Learned Counsel further submitted that there are major contradictions or discrepancies in the examination and crossexamination of the complainant, her mother and other material witnesses. The complainant and other witnesses failed to prove the prosecution story. Learned Counsel further submitted that it is against the law of probable that a major girl who was taken by unknown lady at unknown place and got married with known person, she does not raise any objection and alarm 31 of 153 32 FIR No. 180/12 PS - Aman Vihar at the time of her marriage. Learned Counsel further submitted that the place of marriage is situated in the residential area and it is unbelievable that nobody came there. Thereafter, she had a cold drink and after the alleged incident had escaped from there while the alleged place of incident is in a very congested area. Thereafter, about 15 days they remained silent and after visiting and sending her with the accused, the present case has been registered. Learned Counsel further submitted that the entire case of the prosecution has been demolished by the complainant and the main contradictions; It is highly doubtful that during the entire incident, the victim remained silent; It is also doubtful story of calling by teacher as the exam result has already been declared before the incident, the story of good result and calling by teacher is a cookedup story by the Police with the collusion of the complaint only to falsely implicate the accused Marzina; It is also doubtful that after such incident the complainant was not willing to lodge the complaint and in the compelling circumstances they lodged the complaint as alleged by the complainant is not reliable. PW12 - the mother of the complainant states in her examinationinchief that her daughter was counselled by NGO and thereafter her medical was got conducted and her statement 32 of 153 33 FIR No. 180/12 PS - Aman Vihar was recorded and on basis of the statement, the present case was registered. It clearly shows that the complainant was not wishing to register the case as she was got married with the accused Nadeem with her own wish and the statement was given by the complainant in pressure of her parents and the same is afterthought; It is also doubtful that the name of the accused Marzina and no such allegations are in the previous complaint lodged by the father of the complainant with Police of PS - Aman Vihar against the Marzina, which is admitted by the PW12 and PW13 in their crossexamination; It is also doubtful that as per the case of prosecution, the coaccused Nadeem was arrested from the house of the accused Jyoti @ Marzina but no signature on the arrest memo while the family member of the Marzina and public persons were present at the time of arrest; It is also doubtful that the victim had forgotten the arrest of accused Jyoti @ Marzina at the time of examination before the Court. The key of the house was with the victim which was admitted by her in her crossexamination but her mother says that the key was with the tenant. The witness of arrest W/Constable Sanju is aware of the proceeding which has been done by the IO and the statement of Constable Charan is not on record as all proceeding has been done in PS. 33 of 153 34 FIR No. 180/12 PS - Aman Vihar PW15 - SI Anita Sharma, IO did not inquire about the real owner of House No. F7/261. She admits in her crossexamination that in the above said house some tenant was also residing but no tenant has been cited as witness and no inquiry was got conducted from the said tenants. It is very strange thing that no witness from NGO has been cited in the present case by the IO; Learned Counsel further submitted that the complainant states in her examinationinchief that accused Marzina had taken the complainant to her house i.e, House No. F7/261 but the Police did not verify that the accused Marzina was residing or not at the above said house at the time of incident. Learned Counsel further submitted that present case has been registered u/s 366/109/376/328/34 IPC. Learned Counsel further submitted that the section 376 IPC is not made out against accused Marzina being a lady. The ingredients of section 328 are not in the whole case of the prosecution. Learned Counsel further submitted that in the whole statement of the complainant nowhere mentioned that the alleged cold drink was given by whom. The victim left her house own her own will alongwith coaccused Nadeem. Learned Counsel further submitted that the whole case of the prosecution story is totally adverse to the case of the complainant. There 34 of 153 35 FIR No. 180/12 PS - Aman Vihar are major contradictions and discrepancies in the prosecution evidence and the prosecution has failed to prove this case beyond the reasonable doubts. The witnesses are contradicted on the arrest of accused Marzina. Learned Counsel further submitted that entire proceeding conducted by the Police against the accused person are contemplated and whole case is based on false and fabricated story by the police with the collusion of the complainant. As the arrest witnesses say that site plan was prepared but no site plan is on record. Learned Counsel further submitted that no independent/public witness was present at the time of investigation but police official conducted the investigation in the presence of interested witness i.e. PW12 - Shakeela Bano. Learned Counsel further submitted that PW12 says that accused Marzina was arrested near Phatak and PW13 and IO of the case say that she was arrested from F7/261. Both contradict on arrest. Learned Counsel further submitted that the Investigation Officer prepared site plan before registration of the FIR but the FIR number is existed on the site plan. Learned Counsel further submitted that the victim/complainant is major but she was counselled by NGO Smt. Shashi Sharma, which is admitted by PW12 Ms. Shakeela Bano, mother of the complainant, who stated in 35 of 153 36 FIR No. 180/12 PS - Aman Vihar her examinationinchief that, "her daughter was counselled by the NGO", however, the prosecution did not make her the witness in the present case. Learned Counsel prayed for the acquittal of the accused Marzina @ Jyoti on all the charges leveled against her.

12. While the Ld. Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.

13. I have heard Ms. Kiran Bala, Learned Addl. PP for the State and Ms. Dhaneshwari, Learned Counsel for the accused Nadeem Khan and Sh. Anil Kumar, Learned Counsel for accused Marzina @ Jyoti and have also carefully perused the entire record.

14. The charge for the offences punishable u/s 366/34 and 328/376 IPC against accused Nadeem Khan is that on 19/06/2012, at 36 of 153 37 FIR No. 180/12 PS - Aman Vihar about 11:00 a.m. at A794, Hari Enclave, Kirari, Suleman Nagar, Delhi, within the jurisdiction of PS - Aman Vihar, he alongwith Marjina (since not arrested) in furtherance of their common intention abducted prosecutrix (name withheld), D/o Mohd. Haseen with intent to compel her for marriage or to seduce her to illicit intercourse and that on the same date between 11:00 a.m. to 5:00 p.m. At 261, Block - F7, Sultan Puri, he administered some intoxicant with the cold drink of prosecutrix (name withheld), D/o Mohd. Haseen with intent to commit rape upon her and that on the same date between 11:00 a.m. to 5:00 p.m. at 261, Block

- F7, Sultan Puri, he committed rape upon prosecutrix (name withheld), D/o Mohd. Haseen.

Further, the charge for the offences punishable u/s 366/34 and 376 r/w section 109 IPC against accused Marzina @ Jyoti is that on 19/06/2012, at about 11:00 a.m. at A794, Hari Enclave, Kirari, Suleman Nagar, Delhi, within the jurisdiction of PS - Aman Vihar, she alongwith her coaccused Nadeem Khan in furtherance of their common intention abducted prosecutrix (name withheld), D/o Mohd. Haseen with intent to compel her for marriage or to seduce her to illicit intercourse and that 37 of 153 38 FIR No. 180/12 PS - Aman Vihar 19/06/2012, between 11:00 a.m. to 5:00 p.m. at 261, Block - F7, Sultan Puri she abetted the commission of the rape committed by her co accused Nadeem Khan upon prosecutrix (name withheld), D/o Mohd. Haseen.

15. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.

AGE OF THE PROSECUTRIX

16. PW8 Mohd. Aziz, Asstt. Teacher, Sarvodya Kanya Vidaylya, H Block, Sultan Puri Delhi has deposed that he has brought the summoned record pertaining to the prosecutrix (name withheld) D/o Mohd. Hasin Khan. According to the School record, prosecutrix (name withheld) was admitted in the School in 1st Class on 17/04/1996 on the basis of MCD Birth Certificate showing the date of birth of prosecutrix as 27/12/1990, copy of the said certificate is Ex. PW8/A. The copy of 38 of 153 39 FIR No. 180/12 PS - Aman Vihar admission and withdrawal register in this regard, showing the relevant entry at Serial No. 286 is Ex. PW8/B. Copy of the Admission Form is Ex. PW8/C (running into two pages). Copy of Registration Form is Ex. PW8/D (original seen and returned).

Despite grant of opportunity, PW8 Mohd. Aziz was not crossexamined on behalf of the accused. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.

In the circumstances, it stands proved on the record that the date of birth of the prosecutrix was 27/12/1990.

As the date of the alleged incident is 19/06/2012 and the date of birth of the prosecutrix is 27/12/1990, on simple arithmetical calculation, the age of prosecutrix comes to 21 years, 05 months and 22 days as on the date of incident on 19/06/2012.

In view of above and in the circumstances, it stands established on record that PW13 prosecutrix was aged 21 years, 05 months and 22 days as on the date of alleged incident on 19/06/2012.

39 of 153 40 FIR No. 180/12 PS - Aman Vihar MEDICAL EVIDENCE OF THE PROSECUTRIX

17. PW9 Dr. Savita, Sr. Resident, SGM Hospital, Mangol Puri, Delhi, who deposed that on 03/07/2012, at about 7:45 p.m., one prosecutrix (name withheld) D/o Mohd Harim (Hasin) Khan, female 21 years old was brought by W/Constable Samanta was medically examined by the Doctor at casualty vide MLC No. 41961 which is Ex. PW9/A and she was referred to the Gynae Department for further examination. In the Gynae Department, she medically examined the above said prosecutrix (name withheld) with alleged history of sexual assault on 19/06/2012 by Nadeem as given by her After medical examination, she gave her observation at point encircled 'X' to 'X1'on MLC Ex. PW9/A bearing her signature at point 'A'. As per vaginal examination, Hymen was found torn, She took the exhibits and handed over the same to the Police in sealed condition with the seal of Hospital with sample seal.

During her crossexaminationPW9 - Dr. Savita has deposed that, "I did not seal any clothes of victim as she had already taken bath."

There is nothing in the crossexamination of PW9 Dr. Savita so as to impeach her creditworthiness. She has deposed regarding 40 of 153 41 FIR No. 180/12 PS - Aman Vihar the facts as to what she observed, perceived and experienced.

In view of above and in the circumstances, the medical/gynaecological examination from point encircled 'X' to 'X1 on MLC Ex. PW9/A of PW13 - prosecutrix stands proved on the record.

VIRILITY OF THE ACCUSED NADEEM KHAN

18. It is to be mentioned that on 25/10/2012, accused Nadeem made a statement on oath before the Ld. Predecessor Court wherein he admitted his own MLC as Ex. PX1 and stated that he has 'no objection', if the concerned doctor is not examined as a witness.

Perusal of the MLC of accused Nadeem Khan Ex. PX1 interalia shows that the Doctor has opined that there is nothing to suggest that the patient/accused Nadeem Khan is not capable of performing sexual intercourse.

In the circumstances, it stands proved on the record that 41 of 153 42 FIR No. 180/12 PS - Aman Vihar accused Nadeem Khan was capable of performing sexual intercourse.

BIOLOGICAL AND SEROLOGICAL EVIDENCE

19. PW7 Ms. Poonam Sharma, SSO, Biology FSL, Rohini has proved the Biological Report Ex. PW7/A and the Serological Report Ex. PW7/B, bearing her signatures at point 'A'.

As per Biological Report Ex. PW7/A the description of articles contained in parcel and result of analyses reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed cloth parcel sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l' & '1m' each again sealed with the above mentioned seal.

Exhibit '1a' : Cotton wool swab on a plastic stick kept in a tube described as 'RT vulval swab'.

Exhibit '1b' : Cotton wool swab on a plastic stick kept in a tube described as 'RT vaginal wall swab'.

Exhibit '1c' : Cotton wool swab on a plastic stick kept in a tube described as 'Lt. vaginal wall swab'.

42 of 153 43 FIR No. 180/12 PS - Aman Vihar Exhibit '1d' : Cotton wool swab on a plastic stick kept in a tube described as 'Anterior vaginal wall swab'. Exhibit '1e' : Cotton wool swab on a plastic stick kept in a tube described as 'Posterior vaginal wall swab'. Exhibit '1f' : Cotton wool swab on a plastic stick kept in a tube described as 'Lt. vaginal swab'.

Exhibit '1g1' : Two microslides having faint whitish smear. & '1g2' Exhibit '1h' : Few nail clippings described as 'Rt. Nail'. Exhibit '1i' : Few nail clippings described as 'Lt. Nail'. Exhibit '1j' : Cotton wool swab on a plastic stick kept in a tube described as 'Rt. hand scraping'.

Exhibit '1k' : Cotton wool swab on a plastic stick kept in a tube described as 'Lt. Hand nail swab (scraping).

Exhibit '1l' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample plain'.

Exhibit '1m' : Dark brown foul smelling liquid kept in a tube described as 'Blood sample EOTA (EDTA)'.

Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '2', kept in a tube. Exhibit '2' : Damp foul smelling brown gauze cloth piece described as 'Blood sample'.

RESULT OF ANALYSIS

1. Blood was detected on exhibits '1l', '1m' and '2'.

43 of 153 44 FIR No. 180/12 PS - Aman Vihar

2. Blood could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1h', '1i', '1j' and '1k'.

3. Semen could not be detected on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g1', '1g2', '1h', '1i', '1j' and '1k'.

4. Report of serological analysis in original is attached herewith. NOTE :

1. Regarding query no. '2', the DNA isolation,w as not performed on exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g1', '1g2', '1h', '1i', '1j' and '1k', as no semen was detected.

2. Remnants of the exhibits have been sealed with the seal of "P.Sh.

FSL DELHI".

The Serological Report Ex. PW7/B reads as under: Exhibits Species of origin ABO Grouping/Remarks '1l' Blood sample Sample blood putrefied hence no opinion '1m' Blood sample Sample blood putrefied hence no opinion '2' Blood stained gauze No reaction cloth piece As per the Biological Report Ex. PW7/A, with regard to the description of the articles contained in the parcels, it is noticed that 44 of 153 45 FIR No. 180/12 PS - Aman Vihar Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW4/A, dated 03/07/2012 and parcel no. 2 belongs to accused Nadeem Khan which was seized vide seizure memo Ex. PW3/A, dated 03/07/2012.

On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood was detected on exhibit '1l' (Blood sample plain of prosecutrix), exhibit '1m' (Blood sample EOTA (EDTA) of prosecutrix) and exhibit '2' (Blood sample of accused Nadeem Khan); blood could not be detected on exhibit '1a' (RT vulval swab of the prosecutrix), exhibit '1b' (RT vaginal wall swab of the prosecutrix), exhibit '1c' (Lt. Vaginal wall swab of the prosecutrix), exhibit '1d' (Anterior vaginal wall swab of the prosecutrix), exhibit '1e' (Posterior vaginal wall swab of the prosecutrix), exhibit '1f' (Lt. Vaginal swab of the prosecutrix), exhibit '1h' (Rt. Nail of the prosecutrix), exhibit '1i' (Lt. Nail of the prosecutrix), exhibit '1j' (Rt. Hand scraping of the prosecutrix) and exhibit '1k' (Lt. Hand nail swab (scraping) of the prosecutrix) and semen could not be detected on exhibit '1a' (RT. Vulval swab of the prosecutrix), exhibit '1b' (RT vaginal 45 of 153 46 FIR No. 180/12 PS - Aman Vihar wall swab of the prosecutrix), exhibit '1c' (Lt. Vaginal wall swab of the prosecutrix), exhibit '1d' (Anterior vaginal wall swab of the prosecutrix), exhibit '1e' (Posterior vaginal wall swab of the prosecutrix), exhibit '1f' (Lt. vaginal swab of the prosecutrix), exhibit '1g1' (Microslide having faint whitish smear of the prosecutrix), exhibit '1g2' (Microslide having faint whitish smear of the prosecutrix), exhibit '1h' (Rt. Nail of the prosecutrix), exhibit '1i' (Lt. Nail of the prosecutrix), exhibit '1j' (Rt. hand scraping of the prosecutrix) and exhibit '1k' (Lt. Hand nail swab (scraping) of the prosecutrix). As per the serological report Ex. PW7/B 'Sample was putrefied hence no opinion' could be given on the exhibit '1l' (Blood Sample of the prosecutrix) and exhibit '1m' (Blood Sample of the prosecutrix) and no opinion could be given on exhibit '2' (Blood sample of accused Nadeem Khan) with regard to species of origin and ABO Grouping as it gave 'No Reaction'.

PW9 - Dr. Savita, SR, SGM Hospital, Mangol Puri, Delhi who proved the medical/gynaecological examination from point encircled 'X' to 'X1' on MLC Ex. PW9/A of the prosecutrix, during her crossexamination has specifically deposed that she did not seal any 46 of 153 47 FIR No. 180/12 PS - Aman Vihar clothes of victim as she has already taken bath.

It is also to be noticed that the date of the alleged incident is 19/06/2012 and the medical/gynaecological examination of the prosecutrix was conducted vide MLC Ex. PW9/A on 03/07/2012 and the sealed exhibits of the prosecutrix were seized vide seizure memo Ex. PW4/A, dated 03/07/2012. Coupled with the deposition of PW9 - Dr. Savita as to what she deposed during her cross examination to the effect that she did not seal any clothes of victim as she had already taken bath, during the said interregnum, it cannot be ruled out that prosecutrix must have taken the bath a number of times and must have changed her clothes a number of times and must have answered the call of nature a number of times and must have urinated a number of times and it not being a case of recent sexual activity, for the said reasons it appears that the semen could not be detected on exhibit '1a', '1b', '1c', '1d', '1e', '1f', '1g1', '1g2', '1h', '1i', '1j' and '1k', as detailed hereinabove of the prosecutrix.

20. Now let the testimony of PW13 - Prosecutrix be perused 47 of 153 48 FIR No. 180/12 PS - Aman Vihar and analysed.

PW13 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : "I am residing at the aforesaid address (House No. A - 794, Hari Enclave, Chotti Masjid, Kirari Suleman Nagar, Delhi) for the last one year with my family comprising of my two sisters and three brothers. I have studied till class 12th. Prior to this, we were residing at H - 1/70, Sultan Puri which was on rent. House No. A0794 (A 794) belong to ours and previously, Nadeem had taken the said premises on rent about three years ago where he (Accused Nadeem) (present in Court and correctly identified) is (was) residing with his wife and four children. Around half years (be read as one and a half years) ago, Nadeem was involved in a case of theft and on coming to know of his background, my family got the house vacated. On 19/06/2012 at about 11:00 a.m., I was alone in my house, one lady by the name of Marzina (accused present in Court and correctly identified) who was not known to me previously and told me that I have been called by my madam/teacher in the school because I had got good result in my 12th Board (Result Achha Aaya Hai). She thereafter took me there. But instead of taking me to the School she started taking me somewhere else and when I asked where she was taking me, she stated that she had to pick up another girl. Thereafter, she took me to her house at F7/261, Sultan Puri where I saw Nadeem, Maulvi and Haneef. I had previously seen Haneef because he used to come with Nadeem to our house when Nadeem used to come to my parents to make payment of rent. Thereafter, the Maulvi, whom I can 48 of 153 49 FIR No. 180/12 PS - Aman Vihar identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya). All these people, thereafter, got my photographs clicked and thereafter gave me a cold drink and after consuming cold drink, I became unconscious. When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told me that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya). After some time, Nadeem went outside somewhere and I immediately wore my clothes and escaped and came back to my house. I immediately informed my mother about what had happened. My mother, then, informed my father. For the fear of my reputation and social ostracization, we did not inform about this incident to anybody and kept quiet. However, Nadeem started coming to my house and started threatening my parents to send me to his house or else I would be killed and hence, my parents and myself were compelled to lodge present complaint with the Police on 03/07/2012.

When I came to the Police Station with some representative of NGO and informed the Police as to what has happened, my statement was recorded which is Ex. PW13/A bearing my signatures at point 'A' and signatures of the representative of the NGO at point 'B'. After which the present FIR was registered. I was then taken to SGM Hospital where my medical examination was conducted vide Ex. PW9/A bearing my thumb impression at point encircled 'X'. We thereafter returned to the Police Station and thereafter, I took the Police to the house of accused Marzina at F7/261, Sultan Puri where on my pointing out, the accused Nadeem was arrested vide memo Ex. PW3/B bearing my signatures at point 'B'. Personal search of the accused Nadeem was carried out vide memo already Ex. PW3/C bearing my signatures at point 'B'. Thereafter, I pointed out the place from where Marzina had taken me and also the 49 of 153 50 FIR No. 180/12 PS - Aman Vihar house where I was forcibly got married to Nadeem on which the IO prepared the site plan on my instance. We went to Police Station and from there, we were relieved.

On 25/11/2012, IO ASI Anit (SI Anita), lady Constable Sanju and Constable Charan Singh came to our house whom I and my mother accompanied to the house of Marzina at F7/261, Sultan Puri at her house. When we reached there, we met Marzina and on my pointing out, she was arrested vide memo already Ex. PW10/A bearing my signatures at point 'E' and her personal search was also taken vide memo Ex. PW10/B bearing my signatures at point 'E'. After her arrest, accused Marzina showed to the Police the road/rasta from where she had taken me to her house and the memo Ex. PW10/D was prepared by the IO bearing my signatures at point 'E'. Thereafter, the accused Marzina was sent to the SGM Hospital for her medical examination whereas I went to the Police Station and where my statement was recorded and thereafter, I was relieved from the Police Station"

From the aforesaid narration of PW13 - prosecutrix, it is clear that she is residing at the aforesaid address (House No. A - 794, Hari Enclave, Chotti Masjid, Kirari Suleman Nagar, Delhi) for the last one year with her family comprising of her two sisters and three brothers. She has studied till class 12th. Prior to this, they were residing at H - 1/70, Sultan Puri which was on rent. House No. A0794 (A794) belong to them and previously, Nadeem had taken the said premises on

50 of 153 51 FIR No. 180/12 PS - Aman Vihar rent about three years ago where he (Accused Nadeem) (present in Court and correctly identified) is (was) residing with his wife and four children. Around half years (be read as one and a half years) ago, Nadeem was involved in a case of theft and on coming to know of his background, her family got the house vacated. On 19/06/2012 at about 11:00 a.m., she was alone in her house, one lady by the name of Marzina (accused present in Court and correctly identified) who was not known to her previously and told her that she has been called by her madam/teacher in the School because she had got good result in her 12th Board (Result Achha Aaya Hai). She thereafter took her there. But instead of taking her to the School she started taking her somewhere else and when she asked where she was taking her, she stated that she had to pick up another girl. Thereafter, she took her to her house at F7/261, Sultan Puri where she saw Nadeem, Maulvi and Haneef. She had previously seen Haneef because he used to come with Nadeem to their house when Nadeem used to come to her parents to make payment of rent. Thereafter, the Maulvi, whom she can identify (not arrested), forcibly got her married with Nadeem against her wishes and consent (Zabardasti Nikah Kara Diya). All these people, thereafter, got her photographs 51 of 153 52 FIR No. 180/12 PS - Aman Vihar clicked and thereafter gave her a cold drink and after consuming cold drink, she became unconscious. When she received conscious and came to her senses, she did not find any clothes on her body as well as on the body of Nadeem. On her asking, Nadeem told her that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya). After some time, Nadeem went outside somewhere and she immediately wore her clothes and escaped and came back to her house. She immediately informed her mother about what had happened. Her mother, then, informed her father. For the fear of her reputation and social ostracization, they did not inform about this incident to anybody and kept quiet. However, Nadeem started coming to her house and started threatening her parents to send her to his house or else she would be killed and hence, her parents and she were compelled to lodge present complaint with the Police on 03/07/2012. When she came to the Police Station with some representative of NGO and informed the Police as to what has happened, her statement was recorded which is Ex. PW13/A bearing her signatures at point 'A' and signatures of the representative of the NGO at point 'B'. After which the present FIR was registered. She was then taken to SGM Hospital where her medical examination was conducted vide Ex. PW9/A 52 of 153 53 FIR No. 180/12 PS - Aman Vihar bearing her thumb impression at point encircled 'X'. They thereafter returned to the Police Station and thereafter, she took the Police to the house of accused Marzina at F 7/261, Sultan Puri where on her pointing out, the accused Nadeem was arrested vide memo Ex. PW3/B bearing her signatures at point 'B'. Personal search of the accused Nadeem was carried out vide memo already Ex. PW3/C bearing her signatures at point 'B'. Thereafter, she pointed out the place from where Marzina had taken her and also the house where she was forcibly got married to Nadeem on which the IO prepared the site plan on her instance. They went to Police Station and from there, they were relieved. On 25/11/2012, IO ASI Anita (SI Anita), lady Constable Sanju and Constable Charan Singh came to their house whom she and her mother accompanied to the house of Marzina at F 7/261, Sultan Puri at her house. When they reached there, they met Marzina and on her pointing out, she was arrested vide memo already Ex. PW10/A bearing her signatures at point 'E' and her personal search was also taken vide memo Ex. PW10/B bearing her signatures at point 'E'. After her arrest, accused Marzina showed to the Police the road/rasta from where she had taken her to her house and the memo Ex. PW10/D was prepared by the IO 53 of 153 54 FIR No. 180/12 PS - Aman Vihar bearing her signatures at point 'E'. Thereafter, the accused Marzina was sent to the SGM Hospital for her medical examination whereas she went to the Police Station and where her statement was recorded and thereafter, she was relieved from the Police Station.

During her crossexamination PW13 - prosecutrix has negated the suggestions that she had been making repeated calls to accused Nadeem on his mobile phone from her landline number and also from the mobile phone No. 8459507865 even during the late night hours or that she had made calls to Nadeem on his other number as well as sending message to him from her father's mobile or that her School was closed for summer vacations on 19/06/2012 (Vol. Admissions were going on in the School at that time) or that there are two Police posts on the way they go to her (prosecutrix) house from the house of Marzina (Vol. On the day of incident, she did not notice any Police post there) or that ASI Nand Kishore had been coming to her house because Nadeem claimed that she was his legally wedded wife or that her family had given thrashing to Nadeem on which he sustained injury and was hospitalized (Vol. There was no such incident) or that after Nadeem initiated legal 54 of 153 55 FIR No. 180/12 PS - Aman Vihar proceedings against her (prosecutrix) and her parents, the present complaint was got lodged by her under pressure of her family who did not permit her to join the company of Nadeem or that it is her parents who had forcibly got her back from the house of Nadeem after her marriage and she did not return of her own or that Marzina was not available at her house or that her son was illegally detained in the Police Station as a result of which, he called Marzina to the Masjid from where she was lifted and brought to Police Station or that she (prosecutrix) had signed various documents of arrest of accused Nadeem and Marzina while sitting at Police Station on the direction of her parents and Police officers or that she had eloped with Nadeem having a love affair with him with her own will and consent or that she thereafter married Nadeem by her consent at the house of Marzina because her parents were not agreeable to the relationship or that she has now filed this false complaint and implicated Nadeem and Marzina only to seek a separation from accused Nadeem who is her legally wedded husband or that she did not immediately informed (inform) the Police because there was no such incident of intoxication or forcible marriage and she had gone to the accused willfully and with her free consent being a major, on motorcycle 55 of 153 56 FIR No. 180/12 PS - Aman Vihar or that she is deposing falsely.

Inspite of incisive crossexamination of PW13 - prosecutrix, nothing material has been brought out on the record so as to impeach her creditworthiness. In the witness box she has withstood the test of cross examination and her testimony is consistent throughout. The testimony of PW13 - Prosecutrix on careful perusal and analysis is found to be clear, natural, cogent, convincing, trustworthy and inspiring confidence. The version of this witness on the core spectrum of the crime has remained intact. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

The testimony of PW13 - Prosecutrix is also found to be corroborated by the medical/gynaecological evidence as well as the biological and serological evidence as discussed hereinbefore.

The testimony of PW13 - Prosecutrix is also found to be in consonance with her statement Ex. PWPW13/A made to the Police.

The testimony of PW13 prosecutrix is also found to be 56 of 153 57 FIR No. 180/12 PS - Aman Vihar corroborated by PW12 - Shakila Bano, mother of the prosecutrix to whom PW13 Prosecutrix disclosed the facts relating to the crime shortly after the incident, at the first available opportunity, being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.

PW12 - Shakila Bano in her examinationinchief has deposed that : "I am residing at the aforementioned address (House No. A

- 794, Hari Enclave, Chotti Masjid, Kirari Suleman Nagar, Delhi) for the last one year where I am residing alongwith my family comprising of my husband and five children. Prior to this we were residing at H - 1/70, where we were residing on rent. House No. A794is owned by me and was given on rent previously to the accused Nadeem about three years back where he was residing alongwith his family comprising of his wife and children. About 1½ years ago Nadeem was arrested by Police on account of theft and on coming to know that he is having criminal background, we got our house vacated. During this period when Nadeem stayed at our house with his family he used to come to our house to make the payment of rent and one Hanif used to come with him.

On 19/06/2012 I had gone to the Doctor alongwith my husband for getting medicines from where I went to Tis Hazari Court to meet my lawyer in connection with the private dispute with my neighbour. When I returned home, I did found (find) that my daughter/prosecutrix (name withheld) was not at home. I tried to search for her in the neighbourhood but could not find her. At around 5:00 p.m. 57 of 153 58 FIR No. 180/12 PS - Aman Vihar My daughter/prosecutrix (name withheld) came home, she appeared to be extremely distorted and scared (ghabrai hui thi). My daughter informed me that one lady by the name of Marzina had come to the house and informed her that she had come from the School and had been called by Madam in the school for the result. Thereafter, on the pretext of taking her to the School, Marzina took my daughter to her house. My daughter/prosecutrix (name withheld) further informed me that there she found Nadeem alongwith Hanif and one Maulvi sitting there who without her consent forcibly got her married to Nadeem (Bina Uski Marji Ke Jabardasti Uska Nikah Kara Diya).

Court Question : Who got the Nikah done?

Ans. : Molviji.

After the Nikah Nadeem gave cold drink to prosecutrix (name withheld). After taking cold drink she lost her conscious and after regaining consciousness she found that both she and the accused Nadeem (correctly identified by the witness) were without clothes. Nadeem thereafter told my daughter that he had made physical relations with her and whatever he wanted he had got. (Maine Tere Sath Sharirik Sambandh Banaye Hain Aur Mujhe Jo Chahiyae Tha Mujhe Mil Gaya). My daughter further told me that finding an opportunity when Nadeem was not at home, she escaped and came back home.

When I came to know, what had happened I informed my husband about the same but for the fear of our reputation in the society and amongst our community we kept quite (Apni Ijat Ki Wajah Se Khamosh Rahe). However, when Nadeem started threatening us and my children we were compelled to report the matter to the Police on 03/07/2012. In the Police Station my daughter was counselled by the NGO after which her medical was got conducted and her statement was got recorded on the basis of which the case was registered. I can identify 58 of 153 59 FIR No. 180/12 PS - Aman Vihar the accused Marzina, Hanif and also the Molvi who got the Nikah of my daughter solemnized because he was staying in the Bari Masjid at H3, Sultan Puri and he used to come to our house to take Chanda/donations. I can identify Marzina because on one occasion Nadeem had sent her to my house on two occasions on the pretext of taking the premises on rent but she had done (come) only to check if my daughter was still at home or not. Again said she had come once on Saturday and on the next day i.e. on Sunday at 11:00 a.m. Court observation : Hanif and Molvi had not been apprehended till date.

At this stage, the witness has correctly identified the accused Marzina who is present in the Court today.

Nadeem was arrested by the Police on 03/07/2012 on the pointing out of myself and my daughter. Accused Marzina was arrested on 25/11/2012 on the pointing out of my daughter and was also with her at that time. My statement was recorded by the Police on two occasions i.e. one at the initial stage when th accused Nadeem was arrested and the other when the accused Marzina was arrested."

From the aforesaid narration of PW12 - Shakila Bano, it is clear that she is residing at the aforementioned address (House No. A - 794, Hari Enclave, Chotti Masjid, Kirari Suleman Nagar, Delhi) for the last one year where she is residing alongwith her family comprising of her husband and five children. Prior to this they were residing at H - 1/70, where they were residing on rent. House No. A794 is owned by her and was given on rent previously to the accused Nadeem about three 59 of 153 60 FIR No. 180/12 PS - Aman Vihar years back where he was residing alongwith his family comprising of his wife and children. About 1½ years ago Nadeem was arrested by Police on account of theft and on coming to know that he is having criminal background, they got their house vacated. During this period when Nadeem stayed at their house with his family he used to come to their house to make the payment of rent and one Hanif used to come with him. On 19/06/2012, she had gone to the Doctor alongwith her husband for getting medicines from where she went to Tis Hazari Court to meet her lawyer in connection with the private dispute with her neighbour. When she returned home, she did found (find) that her daughter/prosecutrix (name withheld) was not at home. She tried to search for her in the neighbourhood but could not find her. At around 5:00 p.m. her daughter/prosecutrix (name withheld) came home, she appeared to be extremely distorted and scared (ghabrai hui thi). Her daughter informed her that one lady by the name of Marzina had come to the house and informed her that she had come from the School and had been called by Madam in the School for the result. Thereafter, on the pretext of taking her to the School, Marzina took her daughter to her house. Her daughter/prosecutrix (name withheld) further informed her that there she 60 of 153 61 FIR No. 180/12 PS - Aman Vihar found Nadeem alongwith Hanif and one Maulvi sitting there who without her consent forcibly got her married to Nadeem (bina uski marji ke jabardasti uska nikah kara diya). Court Question : Who got the Nikah done? Ans : Molviji. After the Nikah Nadeem gave cold drink to prosecutrix (name withheld). After taking cold drink she lost her conscious and after regaining consciousness she found that both she and the accused Nadeem (correctly identified by the witness) were without clothes. Nadeem thereafter told her daughter that he had made physical relations with her and whatever he wanted he had got. (Maine Tere Sath Sharirik Sambandh Banaye Hain Aur Mujhe Jo Chahiyae Tha Mujhe Mil Gaya). Her daughter further told her that finding an opportunity when Nadeem was not at home, she escaped and came back home. When she came to know, what had happened she informed her husband about the same but for the fear of their reputation in the society and amongst their community they kept quite (Apni Ijat Ki Wajah Se Khamosh Rahe). However, when Nadeem started threatening them and her children they were compelled to report the matter to the Police on 03/07/2012. In the Police Station her daughter was counselled by the NGO after which her medical was got conducted and her statement was 61 of 153 62 FIR No. 180/12 PS - Aman Vihar got recorded on the basis of which the case was registered. She can identify the accused Marzina, Hanif and also the Molvi who got the Nikah of her daughter solemnized because he was staying in the Bari Masjid at H3, Sultan Puri and he used to come to their house to take Chanda/donations. She can identify Marzina because on one occasion Nadeem had sent her to her house on two occasions on the pretext of taking the premises on rent but she had done (come) only to check if her daughter was still at home or not. Again said she had come once on Saturday and on the next day i.e. on Sunday at 11:00 a.m. Court observation : Hanif and Molvi had not been apprehended till date. She has correctly identified the accused Marzina who is present in the Court. Nadeem was arrested by the Police on 03/07/2012 on the pointing out of her and her daughter. Accused Marzina was arrested on 25/11/2012 on the pointing out of her daughter and she was also with her at that time. Her statement was recorded by the Police on two occasions i.e. one at the initial stage when the accused Nadeem was arrested and the other when the accused Marzina was arrested.

During her crossexamination PW12 - Shakila Bano 62 of 153 63 FIR No. 180/12 PS - Aman Vihar negated the suggestions that they were using mobile no. 8459507865 and her daughter/prosecutrix (name withheld) was in constant touch with accused Nadeem for the last three years on his mobile no. 8459449814 till the alleged date of incident or that her daughter/prosecutrix (name withheld) used to call up the accused Nadeem on his mobile even during night hours or that her daughter was having an (a) love affair with accused Nadeem for the last three years or that she (prosecutrix) had voluntarily gone with accused Nadeem and got marry (married) to him without any force or pressure at that time or that they had got their daughter back from the house of Nadeem forcibly because they were not accepting her marriage with accused Nadeem or that ASI Nand Kishore had come to their house to take away her daughter because Nadeem had claimed that he was legally marry (married) to her daughter but they had told ASI Nand Kishore that their daughter was at Seelam Pur with her Chacha Vol. There is no Chacha at Seelampur or that they had also given a thrashing to Nadeem as a result of which he sustained injuries and had to be hospitalized Vol. There was no such incident or that the Police had interrogated some neighbours and they had disclosed to the Police that her daughter and Nadeem were married or that on the corner of the 63 of 153 64 FIR No. 180/12 PS - Aman Vihar gali/street from where Nadeem and Marzina were arrested, there is a halwai shop from where normally Police persons remain sitting Vol. she did not notice any Police presence or that no complaint was made by them because they were aware that their daughter had voluntarily married Nadeem or that it was only after Nadeem started initiated legal proceedings by making Police complaints for meeting her daughter and to secure her return being his legally wedded wife that they made this complaint to the Police or that she and her husband had pressurized her daughter/prosecutrix (name withheld) and tutored her to initiate the proceedings against the accused Nadeem which proceedings were initiated against him under their threat or that she has falsely implicated the accused Nadeem and accused Marzina only because they were not agreeable to marriage of her daughter and accused Nadeem or that she is deposing falsely on this account.

Inspite of incisive crossexamination of PW12 - Shakila Bano, mother of the prosecutrix nothing material has been brought out so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. On careful perusal and analysis 64 of 153 65 FIR No. 180/12 PS - Aman Vihar and by applying the discerning scrutiny standard [Ref. Raju @ Balachandran & Ors. Vs. State of Tamil Nadu 2012 XII AD (S.C.)1] the testimony of PW12 - Shakila Bano is found to be natural, clear, reliable, inspiring confidence and having a ring of truth. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. She has deposed regarding the facts as to what she perceived, observed and experienced.

21. While analysing the testimonies of PW13 - Prosecutrix and PW12 - Shakila Bano, mother of the prosecutrix as discussed herein above inspite of incisive crossexamination nothing has come out in the statements of PW13 - Prosecutrix and PW12 - Shakila Bano which may throw even a slightest doubt on the prosecution version of the incident. Though the suggestions by the defence to PW13 - Prosecutrix that she had been making repeated calls to accused Nadeem on his mobile phone from her landline number and also from the mobile phone No. 8459507865 even during the late night hours or that she had made calls to Nadeem on his other number as well as sending message to him from her father's mobile or that her School was closed for summer vacations 65 of 153 66 FIR No. 180/12 PS - Aman Vihar on 19/06/2012 (Vol. Admissions were going on in the School at that time) or that there are two Police posts on the way they go to her (prosecutrix) house from the house of Marzina (Vol. On the day of incident, she did not notice any Police post there) or that ASI Nand Kishore had been coming to her house because Nadeem claimed that she was his legally wedded wife or that her family had given thrashing to Nadeem on which he sustained injury and was hospitalized (Vol. There was no such incident) or that after Nadeem initiated legal proceedings against her (prosecutrix) and her parents, the present complaint was got lodged by her under pressure of her family who did not permit her to join the company of Nadeem or that it is her parents who had forcibly got her back from the house of Nadeem after her marriage and she did not return of her own or that Marzina was not available at her house or that her son was illegally detained in the Police Station as a result of which, he called Marzina to the Masjid from where she was lifted and brought to Police Station or that she (prosecutrix) had signed various documents of arrest of accused Nadeem and Marzina while sitting at Police Station on the direction of her parents and Police officers or that she had eloped with Nadeem having a love affair with him with her own will and consent or 66 of 153 67 FIR No. 180/12 PS - Aman Vihar that she thereafter married Nadeem by her consent at the house of Marzina because her parents were not agreeable to the relationship or that she has now filed this false complaint and implicated Nadeem and Marzina only to seek a separation from accused Nadeem who is her legally wedded husband or that she did not immediately informed (inform) the Police because there was no such incident of intoxication or forcible marriage and she had gone to the accused willfully and with her free consent being a major, on motorcycle or that she is deposing falsely and the suggestions to PW12 - Shakila Bano, that they were using mobile no. 8459507865 and her daughter/prosecutrix (name withheld) was in constant touch with accused Nadeem for the last three years on his mobile no. 8459449814 till the alleged date of incident or that her daughter/prosecutrix (name withheld) used to call up the accused Nadeem on his mobile even during night hours or that her daughter was having an (a) love affair with accused Nadeem for the last three years or that she (prosecutrix) had voluntarily gone with accused Nadeem and got marry (married) to him without any force or pressure at that time or that they had got their daughter back from the house of Nadeem forcibly because they were not accepting her marriage with accused Nadeem or 67 of 153 68 FIR No. 180/12 PS - Aman Vihar that ASI Nand Kishore had come to their house to take away her daughter because Nadeem had claimed that he was legally marry (married) to her daughter but they had told ASI Nand Kishore that their daughter was at Seelam Pur with her Chacha Vol. There is no Chacha at Seelampur or that they had also given a thrashing to Nadeem as a result of which he sustained injuries and had to be hospitalized Vol. There was no such incident or that the Police had interrogated some neighbours and they had disclosed to the Police that her daughter and Nadeem were married or that on the corner of the gali/street from where Nadeem and Marzina were arrested, there is a halwai shop from where normally Police persons remain sitting Vol. she did not notice any Police presence or that no complaint was made by them because they were aware that their daughter had voluntarily married Nadeem or that it was only after Nadeem started initiated legal proceedings by making Police complaints for meeting her daughter and to secure her return being his legally wedded wife that they made this complaint to the Police or that she and her husband had pressurized her daughter/prosecutrix (name withheld) and tutored her to initiate the proceedings against the accused Nadeem which proceedings were initiated against him under their threat or that 68 of 153 69 FIR No. 180/12 PS - Aman Vihar she has falsely implicated the accused Nadeem and accused Marzina only because they were not agreeable to marriage of her daughter and accused Nadeem or that she is deposing falsely on this account were put, which were negated by the said PWs but the same have not at all being made probably much established by any cogent evidence. Further there is not an iota of evidence or even a suggestion that the accused have been falsely implicated because of animosity.

22. It is well settled that rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim.

It is to be noticed that the opinion expressed by Modi in Medical jurisprudence and Toxicology (Twenty First Edition) at page 369 which reads as : "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite possible to commit legally the 69 of 153 70 FIR No. 180/12 PS - Aman Vihar offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

In Parikh's Textbook of Medical jurisprudence and Toxicology, the following passage is found:

"Sexual intercourse : In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated:

".....even slight penetration is sufficient and emission is unnecessary."

70 of 153 71 FIR No. 180/12 PS - Aman Vihar On analysing the testimony of PW13 - Prosecutrix in the light of medical/gynaecological examination from Point encircled 'X' to'X1' on the MLC Ex. PW9/A and biological and serological evidence together with the MLC of accused Nadeem Khan Ex. PX1, as discussed hereinbefore, the act of sexual intercourse activity by complete penetration of penis or by partial penetration of the penis, within labia majora or the vulva or pudenda stands proved.

In the circumstances, it stands clearly established on the record, of the performance of the act of sexual intercourse by the accused Nadeem Khan with PW13 - Prosecutrix without her consent.

NOW LET THE SUBMISSIONS/PLEA RAISED BY THE LEARNED DEFENCE COUNSEL BE ANALYSED AND APPRECIATED

23. Learned Counsel for accused Marzina @ Jyoti submitted that PW13 - prosecutrix had forgotten to depose regarding the arrest of accused Marzina @ Jyoti at the time of examination before the Court.

71 of 153 72 FIR No. 180/12 PS - Aman Vihar I have carefully perused and analysed the evidence on record.

With due respect it appears that the Learned Counsel for the accused has either misread the evidence or has not read the evidence on the record.

PW13 - prosecutrix during her examinationinchief has specifically deposed regarding the arrest of accused Marzina @ Jyoti, which is reproduced and reads as under : "On 25/11/2012, IO ASI Anit (SI Anita), lady Constable Sanju and Constable Charan Singh came to our house whom I and my mother accompanied to the house of Marzina at F7/261, Sultan Puri at her house. When we reached there, we met Marzina and on my pointing out, she was arrested vide memo already Ex. PW10/A bearing my signatures at point 'E' and her personal search was also taken vide memo Ex. PW10/B bearing my signatures at point 'E'."

(Underlined by me) In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

24. Learned Counsel for accused Marzina @ Jyoti submitted 72 of 153 73 FIR No. 180/12 PS - Aman Vihar that the key of the house was with PW13 - prosecutrix which was admitted by her in her crossexamination but her mother - PW12, Mrs. Shakeela Bano says that the key was with the tenant.

I have carefully perused and analysed the evidence on record.

It is not made clear by the Learned Counsel for the accused as to what he intends to convey and what benefit he intends to reap from the plea so raised.

PW13 Prosecutrix during her crossexamination has deposed that : "I had only informed my tenant residing at ground floor when I left the house on 19/06/2012. I had locked the house and carried the keys with me. There are two keys to the said lock. I had carried both the keys. When I reached back my home, I met my parents. They had already reached home. The house was open at that time. I cannot tell how my parents have opened the lock."

PW12 Mrs. Shakeela Bano, mother of the prosecutrix during her crossexamination has deposed that : "On 19/06/2012, I left my house around 10:30 a.m. and 73 of 153 74 FIR No. 180/12 PS - Aman Vihar reached back at around 4:30 p.m. When I reached back home at around 4:30 p.m., the house was open. Vol. The tenant had gone to the top floor for drying her clothes and she had one set of keys."

From the aforesaid narration of the said PWs, it is clearly indicated that they have deposed regarding the facts as to what they perceived, observed and experienced. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

25. Learned Counsel for accused Marzina @ Jyoti submitted that PW15 - SI Anita Sharma, IO, did not inquire about the real owner of House No. F7/261. Learned Counsel further submitted that PW13 - prosecutrix in her examinationinchief has deposed that accused Marzina @ Jyoti had taken her to her house at F - 7/261 but the Police did not verify that accused Marzina @ Jyoti was residing or not at the said house at the time of incident.

74 of 153 75 FIR No. 180/12 PS - Aman Vihar I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for accused Marzina @ Jyoti that, "PW15 - Anita Sharma, IO, did not inquire about the real owner of House No. F7/261 and that PW13 - prosecutrix in her examinationinchief has deposed that accused Marzina @ Jyoti had taken her to her house at F - 7/261 but the Police did not verify that accused Marzina @ Jyoti was residing or not at the said house at the time of incident", is concerned, PW15 - SI Anita Sharma, IO during her crossexamination on behalf of accused Marzina @ Jyoti recorded on 15/03/2013 has specifically deposed that, "efforts were made to get the documents of ownership of House No. F7/261. The landlord was not living there and the inquiries made from the tenants living there but they did not divulge any information and no statement of them were recorded. Name of the landlord was also not told by the said tenants."

It is also to be noticed that DW4 - Sh. Rashid during his crossexamination recorded on 23/09/2014, conducted by the Learned 75 of 153 76 FIR No. 180/12 PS - Aman Vihar Addl. PP for the State has also specifically deposed that, "The Nikah ceremony was informed to be held at House No. F7, that is the house of accused Marjeena."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

26. Learned Counsel for accused Marzina @ Jyoti submitted that section 376 IPC is not made out against accused Marzina @ Jyoti being a lady.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for accused Marzina @ Jyoti that, "section 376 IPC is not made out against accused Marzina @ Jyoti being a lady" is concerned, undisputably, accused Marzina @ Jyoti has also been charged for the offence punishable u/s 376 r/w section 109 IPC which is to the effect that, on 19/06/2012, between 11:00 a.m. to 5:00 p.m. at 261, Block - F7, Sultan Puri she abetted the commission of the rape committed by her co 76 of 153 77 FIR No. 180/12 PS - Aman Vihar accused Nadeem Khan upon prosecutrix (name withheld), D/o Mohd. Haseen.

Section 109 IPC provides for punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It reads as under : 109 Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy,or with the aid which constitutes the abetment.

Reading of section 109 IPC clearly indicates that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.

77 of 153 78 FIR No. 180/12 PS - Aman Vihar In the present case, since accused Marzina @ Jyoti had abetted accused Nadeem Khan to commit the offence of rape upon the prosecutrix and it was committed in consequence of the abetment as discussed hereinbefore. Though, it can be argued that accused Marzina @ Jyoti being a woman cannot commit rape, but if a woman facilitates the committal of the act of rape and such act is committed by a person capable by law of committing an offence (accused Nadeem Khan) with the same intention or knowledge of the abettor, yet the act of accused Marzina @ Jyoti, as an abettor, though herself she may not be capable to commit such act of rape, shall be covered within the mischief of section, 109 r/w section 376 IPC, owing to Explanation 2 appended to section 108 IPC which provides, to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to constitute the offence should be caused.

It is to be mentioned that in case 'Priya Patel Vs. State of 78 of 153 79 FIR No. 180/12 PS - Aman Vihar M.P.', AIR 2006 SUPREME COURT 2639 a question whether a woman can be charged for abetment came before the Hon'ble Supreme Court which was left to be dealt with by the concerned Court to act in accordance with law, if in law it is permissible and the facts warrant such a course to be adopted.

In para 9 of Priya Patel's case (Supra), the Hon'ble Supreme Court observed which is reproduced and reads as under : "The residual question is whether she can be charged for abetment. This is an aspect which has not been dealt with by the Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be adopted, it is for the concerned Court to act in accordance with law. We express no opinion in that regard."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

27. Learned Counsel for accused Marzina @ Jyoti submitted that in the whole statement of the prosecutrix, nowhere it is mentioned 79 of 153 80 FIR No. 180/12 PS - Aman Vihar that the alleged cold drink was given by whom.

I have carefully perused and analysed the evidence on record.

The testimony of PW13 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW13 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

During her examinationinchief, PW13 - prosecutrix has specifically deposed which is reproduced and reads as under : "Thereafter, the Maulvi, whom I can identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya). All these people, thereafter, got my photographs clicked and thereafter gave me a cold drink and after consuming cold drink, I became unconscious....."

During her crossexamination, PW13 prosecutrix has clearly deposed that, "I do not know who had brought the cold drink.

80 of 153 81 FIR No. 180/12 PS - Aman Vihar After abut 510 minutes of the Nikah, I was given the cold drink. I had regained my conscious at about 4:00 pm. on the same day".

From the aforesaid narration of PW13 - prosecutrix, it is clearly indicated that she has deposed the facts as to what she experienced, observed and perceived. Nonspecifying as to who gave the cold drink to her does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

28. Learned Counsel for accused Marzina @ Jyoti submitted that there is contradiction on the point of arrest of accused Marzina @ Jyoti. He submitted that PW13 - prosecutrix has stated that accused Marzina @ Jyoti was arrested near Phatak while PW12 - Smt. Shakeela Bano and IO have stated that she was arrested from F7/261.

I have carefully perused and analysed the evidence on record.

81 of 153 82 FIR No. 180/12 PS - Aman Vihar PW13 - Prosecutrix during her examinationinchief has deposed that : "On 25/11/2012, IO ASI Anit (SI Anita), lady Constable Sanju and Constable Charan Singh came to our house whom I and my mother accompanied to the house of Marzina at F7/261, Sultan Puri at her house. When we reached there, we met Marzina and on my pointing out, she was arrested vide memo already Ex. PW10/A bearing my signatures at point 'E' and her personal search was also taken vide memo Ex. PW10/B bearing my signatures at point 'E'"

PW12 - Mrs. Shakeela Bano, mother of the prosecutrix during her crossexamination has deposed that : "When Marzina was arrested on 25/11/2012, she was not at home when I went with the Police to her house. Vol. later they apprehended her from some where near the Phatak and I and my daughter was (were) called to the Police Station to identify her which we did."

PW15 - SI Anita Sharma, IO during her examination inchief has deposed that : "On 25/11/2012, I was present in the PS Aman Vihar. I received an information that accused Marjina @ Jyoti has been seen in the Gali of F7, Sultan Puri. Thereafter, I alongwith Lady Constable 82 of 153 83 FIR No. 180/12 PS - Aman Vihar Sanju and Constable Charan Singh reached at the house of complainant i.e. A794, Hari Enclave, Suleman Nagar and from there prosecutrix (name withheld), her mother Shakila Bano and father were joined in the investigation and thereafter we reached at F7 Block, Sultan Puri and from the gali accused Marjina @ Jyoti was apprehended at the instance of complainant/prosecutrix (name withheld). She was interrogated and arrested vide arrest memo Ex. PW10/A and her personal search was conducted vide memo Ex. PW10/B, bearing my signature at points 'C'. She made disclosure statement Ex. PW10/C, bearing my signature at point B."

From the aforesaid narration of the said PWs, it is clearly indicated that they have deposed regarding the facts as to what they acted, perceived, observed and experienced. Moreover, the said discrepancy regarding which the plea has been raised by the Learned Counsel for the accused, reflect upon the investigation but does not reflect upon the substantive evidence and the probative value of the statement of PW13 - prosecutrix made on material and relevant aspects. Nor does it vitiate or negate the case of the prosecution which is otherwise proved on record by clear, cogent and convincing evidence. Nor does it dislodge the substratum of the prosecution case and despite its existence, the clear, cogent, convincing, reliable and trustworthy 83 of 153 84 FIR No. 180/12 PS - Aman Vihar evidence proved on the record bears out the case of the prosecution. The version of the prosecutrix on the core spectrum of the crime has remained intact.

Moreover, a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. There are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. The power of observation, retention and reproduction differs with individuals.

In case A. Shankar Vs. State of Karnataka, 2011 VII AD (SC) 37, the Hon'ble Supreme Court has held : "....... Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness 84 of 153 85 FIR No. 180/12 PS - Aman Vihar earlier.

Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omission or contradictions.....".

Even the honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differs with individuals. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. (Ref. 'Mahmood Vs. State', 1991 RLR 287).

The Hon'ble Supreme Court of India in case 'Leela Ram Vs. State of Haryana', (1999) 9 SCC 525 has observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable.

85 of 153 86 FIR No. 180/12 PS - Aman Vihar The Hon'ble Supreme Court in 'Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat' (1983) 3 SCC 217, has held much importance cannot be attached to minor discrepancies for the reasons :

1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on mental screen; 2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

3) The powers of observation differ from person to person, what one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

It is a settled principle of law that every improvement or variation cannot be treated as an attempt to falsely implicate the accused by the witness. The approach of the Court has to be reasonable and practicable. (Reference Ashok Kumar Vs. State of Haryana [(2010) 12 SCC 350] and Shivlal and Another Vs. State of Chhattisgarh [(2011) 9 SCC 561]).

The Hon'ble Supreme Court in Para 21 of the case titled 86 of 153 87 FIR No. 180/12 PS - Aman Vihar Kuria & Anr. Vs. State of Rajasthan 2012 XI AD (S.C.) 376 has held that : "21.............. This Court has repeatedly taken the view that the discrepancies or improvements which do not materially affect the case of the prosecution and are insignificant cannot be made the basis of doubting the case of the prosecution. The Courts may not concentrate too much on such discrepancies or improvements. The purpose is to primarily and clearly sift the chaff from the grain and find out the truth from the testimony of the witnesses. Where it does not affect the core of the prosecution case, such discrepancy should not be attached undue significance. The normal course of human conduct would be that while narrating a particular incident, there may occur minor discrepancies. Such discrepancies may even in Law render credential to the depositions. The improvements or variations must essentially relate to the material particulars of the prosecution case. The alleged improvements and variations must be shown with respect to material particulars of the case and the occurrence. Every such improvement, not directly related to the occurrence is not a ground to doubt the testimony of a witness. The credibility of a definite circumstance of the prosecution case cannot be weakened with reference to such minor or insignificant improvements. Reference in this regard can be made to the judgments of this Court in Kathi Bharat Vajsur and Another Vs. State of Gujrat [(2010) 5 SCC 724], Narayan Chetanram Chaudhary and Another Vs. State of Maharashtra [(2000) 8 SCC 457], D. P. Chadha Vs. Triyugi Narain Mishra and Others [(2001) 2 SCC 205] and Sukhchain Singh Vs. State of Haryana and others [(2002) 5 SCC 100].

87 of 153 88 FIR No. 180/12 PS - Aman Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

29. Learned Counsel for accused Marzina @ Jyoti submitted that it is highly doubtful that during the entire incident, the victim remained silent.

I have carefully perused and analysed the evidence on record.

During her crossexamination, PW13 - prosecutrix has specifically deposed that : "I did not raise any alarm when I reached the house of Marzina because I never anticipated whatever had happened as she was taking me for finding out result and I was taken by surprise."

88 of 153 89 FIR No. 180/12 PS - Aman Vihar At the cost of repetition, PW13 - Prosecutrix during her examinationinchief has specifically deposed, which is reproduced and reads as under : "Thereafter, the Maulvi, whom I can identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya). All these people, thereafter, got my photographs clicked and thereafter gave me a cold drink and after consuming cold drink, I became unconscious. When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told me that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya)."

From the aforesaid narration of PW13 - prosecutrix, it is clearly indicated that after consuming cold drink, she became unconscious, when the prosecutrix was made unconscious by administering cold drink, containing a stupefying substance, one is left wondering as to how it is expected that she would gather the courage in such adverse circumstances to raise hue and cry.

Nonraising of hue and cry does not falsify the case of the 89 of 153 90 FIR No. 180/12 PS - Aman Vihar prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

So far as the plea raised by the Learned Counsel for the accused that, "it is highly doubtful that during the entire incident, the victim remained silent", is concerned, it is evident from the record that during the crossexamination of PW13 - prosecutrix, none of the said accused voiced their concerns or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For such failure, accused are to blame themselves and none else.

Recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

90 of 153 91 FIR No. 180/12 PS - Aman Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

30. Learned Counsel for accused Marzina @ Jyoti submitted that after such incident the complainant was not willing to lodge the complaint and in the compelling circumstances they lodged the complaint as alleged by the complainant is not reliable. PW12 - the mother of the complainant states in her examinationinchief that her daughter was counselled by NGO and thereafter her medical was got conducted and her statement was recorded and on the basis of the statement, the present case was registered. It clearly shows that the complainant was not wishing to register the case as she was got married with the accused Nadeem with her own wish and the statement was given by the complainant in pressure of her parents and the same is afterthought.

I have carefully perused and analysed the evidence on record.

The testimony of PW13 - prosecutrix has been reproduced, 91 of 153 92 FIR No. 180/12 PS - Aman Vihar discussed and analysed hereinabove. At the cost of repetition, the testimony of PW13 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

At the cost of repetition, PW13 - prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "On 19/06/2012 at about 11:00 a.m., I was alone in my house, one lady by the name of Marzina (accused present in Court and correctly identified) who was not known to me previously and told me that I have been called by my madam/teacher in the school because I had th got good result in my 12 Board (Result Achha Aaya Hai). She thereafter took me there. But instead of taking me to the School she started taking me somewhere else and when I asked where she was taking me, she stated that she had to pick up another girl. Thereafter, she took me to her house at F7/261, Sultan Puri where I saw Nadeem, Maulvi and Haneef. I had previously seen Haneef because he used to come with Nadeem to our house when Nadeem used to come to my parents to make payment of rent. Thereafter, the Maulvi, whom I can identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya).

All these people, thereafter, got my photographs clicked and thereafter gave me a cold 92 of 153 93 FIR No. 180/12 PS - Aman Vihar drink and after consuming cold drink, I became unconscious. When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told me that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya).

After some time, Nadeem went outside somewhere and I immediately wore my clothes and escaped and came back to my house. I immediately informed my mother about what had happened. My mother, then, informed my father. For the fear of my reputation and social ostracization, we did not inform about this incident to anybody and kept quiet. However, Nadeem started coming to my house and started threatening my parents to send me to his house or else I would be killed and hence, my parents and myself were compelled to lodge present complaint with the Police on 03/07/2012.

(Underlined by me) PW12 - Mrs. Shakeela Bano, mother of the prosecutrix during her examinationinchief has specifically deposed that : "When I came to know, what had happened I informed my husband about the same but for the fear of our reputation in the society 93 of 153 94 FIR No. 180/12 PS - Aman Vihar and amongst our community we kept quite (Apni Ijat Ki Wajah Se Khamosh Rahe). However, when Nadeem started threatening us and my children we were compelled to report the matter to the Police on 03/07/2012. In the Police Station my daughter was counselled by the NGO after which her medical was got conducted and her statement was got recorded on the basis of which the case was registered."

(Underlined by me) From the aforesaid narration of PW13 prosecutrix and PW12 - Mrs. Shakeela Bano, it is clearly indicated that as to how, in what circumstances, the prosecutrix got lodged the case with the Police, of the rigors of the incident, of which she had undergone.

In the circumstances, the delay in registering the report with the Police vide her (PW13 - prosecutrix) statement Ex. PW13/A stands sufficiently and satisfactorily explained.

The sight cannot be lost of the fact that the Indian women has tendency to conceal offence of sexual assault because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the Police Station 94 of 153 95 FIR No. 180/12 PS - Aman Vihar and lodge a case.

Delay in lodging of FIR is a normal phenomenon especially in cases like rape or outraging the modesty of a women, the aggrieved or the injured person or her relations will naturally think twice before giving a complaint to the police (Ref. Mohd. Habib Vs. State (Delhi Administration) 1989 CRLJ 137 (Delhi).

The delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. (Ref. State of Himachal Pradesh V. Prem Singh AIR 2009 SC 1010).

The Hon'ble Apex Court in Ravinder Kumar Vs. State of Punjab, VI (2001) SLT 471 has held as under : 95 of 153 96 FIR No. 180/12 PS - Aman Vihar "The law has not fixed any time limit for lodging of FIR. Hence, a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version."

In case Tara Singh Vs. State of Punjab, (1991 Suppl. (1) SCC 536), the Hon'ble Supreme Court has held that : "It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the Police Station immediately after the occurrence. Human nature as it is, the kith and kin who have witnesses the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the Police."

In State Vs. Gurmeet Singh, IV (1996) CCR 134 (SC), the Hon'ble Supreme Court, inter alia observed as under : "The Courts cannot overlook the fact that in sexual offence delay in the lodging of the FIR can be due to variety of the prosecutrix or her family members to go to the Police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodge."

96 of 153 97 FIR No. 180/12 PS - Aman Vihar In Gian Chand Vs. State, II (2001) SLT 740, the Hon'ble Supreme Court has observed as under : "That mere delay in filing FIR is no ground to doubt the case of the prosecution and not believing the testimony given by the prosecutrix in the Court. It was held that delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on that ground."

Normally a woman would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. [Ref. Madan Lal Vs. State of MP (1997) 2 Crimes 210 (MP)].

The Hon'ble Supreme Court in case Karnel Singh Vs. State of M.P. (1995) 5 SCC 518, has held : "7.......The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less then promptly does not raise the inference that the complaint 97 of 153 98 FIR No. 180/12 PS - Aman Vihar was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false (emphasis added)."

The Hon'ble Supreme Court in Para 21 in case Rajinder V. State of H.P. AIR 2009 SC 3022 has interalia held : "21. In the context of Indian Culture, a woman victim of sexual aggression would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no selfrespecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for......."

The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does 98 of 153 99 FIR No. 180/12 PS - Aman Vihar not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"

The Hon'ble Supreme Court in Para 20 in case Satyapal V. State of Haryana AIR 2009 SC 2190 has interalia held : "20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon......."

In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She 99 of 153 100 FIR No. 180/12 PS - Aman Vihar would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."

PW13 - Prosecutrix during her crossexamination has specifically negated the suggestion that after Nadeem initiated legal proceedings against her and her parents, the present complaint was got lodged by her under pressure of her family who did not permit her to join the company of Nadeem.

It is pertinent to reproduce the relevant part of cross examination of PW12 - prosecutrix which is reproduced and reads as under : "It is wrong to suggest that after Nadeem initiated legal proceedings against me and my parents, the present complaint was got lodged by me under pressure of my family who did not permit me to join the company of Nadeem."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

31. Learned Counsel for accused Marzina @ Jyoti submitted 100 of 153 101 FIR No. 180/12 PS - Aman Vihar that the name of the accused Marzina and no such allegations are in the previous complaint lodged by the father of the complainant with Police of PS - Aman Vihar against the Marzina, which is admitted by the PW12 and PW13 in their crossexamination.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for the accused Marzina @ Jyoti that, "the name of the accused Marzina and no such allegations are in the previous complaint lodged by the father of the complainant with Police of PS - Aman Vihar against the Marzina, which is admitted by the PW12 and PW13 in their crossexamination", is concerned, PW13 - prosecutrix during her crossexamination has specifically deposed that : "My father had made a complaint against Nadeem on 23/06/2012 at PS - Aman Vihar. (Vol. He used to threaten us that is why my father had made a complaint.)"

PW12 - Mrs. Shakeela Bano, mother of the prosecutrix during her crossexamination has deposed that :

101 of 153 102 FIR No. 180/12 PS - Aman Vihar "I am not aware if my husband had made a complaint on 23/06/2012 at PS - Aman Vihar against the accused. Vol. I am not aware of the date but on one occasion when the accused Nadeem came to our house, my husband had made a complaint. I am not aware of the contents of the said report or whether my husband had mentioned anything in connection with the kidnapping/abduction (of) my daughter by the accused Nadeem."

From the aforesaid narration of PW13 - prosecutrix, it is clear that her father had made a complaint against accused Nadeem on 23/06/2012 at PS - Aman Vihar as he used to threaten them that is why her father had made a complaint.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

32. Learned Counsel for accused Marzina @ Jyoti submitted that as the exam result has already been declared before the incident, the story of good result and calling by teacher is a cookedup story by the Police with the collusion of the complainant only to falsely implicate the accused Marzina.

102 of 153 103 FIR No. 180/12 PS - Aman Vihar I have carefully perused and analysed the evidence on record.

At the cost of repetition, PW13 prosecutrix during her examinationinchief has specifically deposed which is reproduced and reads as under : "On 19/06/2012 at about 11:00 a.m., I was alone in my house, one lady by the name of Marzina (accused present in Court and correctly identified) who was not known to me previously and told me that I have been called by my madam/teacher in the school because I had th got good result in my 12 Board (Result Achha Aaya Hai). She thereafter took me there. But instead of taking me to the School she started taking me somewhere else and when I asked where she was taking me, she stated that she had to pick up another girl. Thereafter, she took me to her house at F7/261, Sultan Puri where I saw Nadeem, 103 of 153 104 FIR No. 180/12 PS - Aman Vihar Maulvi and Haneef. I had previously seen Haneef because he used to come with Nadeem to our house when Nadeem used to come to my parents to make payment of rent. Thereafter, the Maulvi, whom I can identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya).

All these people, thereafter, got my photographs clicked and thereafter gave me a cold drink and after consuming cold drink, I became unconscious. When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told Kuch Maine Pana Tha, Pa me that whatever he wanted, he got (Jo Liya). "

(Underlined by me) On analysing the entire testimony of PW13 - prosecutrix, it transpires that she has described the scenario implicating the accused to be the authors of the crime, of the committal of the sexual assault upon her by accused Nadeem, abetted by accused Marzina @ Jyoti. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of crime by the accused have remained intact.

The testimony of PW15 - SI Anita Sharma, IO has been detailed and discussed hereinbefore. On careful perusal and analysis of

104 of 153 105 FIR No. 180/12 PS - Aman Vihar the testimony of PW15 - SI Anita Sharma, IO, it is found to be cogent, convincing, inspiring confidence and a graphic description of the steps taken by her during the course of investigation. There is nothing in her crossexamination so as to impeach her creditworthiness. There is also nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. The said PW has deposed regarding the facts as to what she acted, observed and experienced during the course of investigation.

So far as the theory propounded by the Learned Counsel for accused Marzina @ Jyoti that, "as the exam result has already been declared before the incident, the story of good result and calling by teacher is a cookedup story by the Police with the collusion of the complainant only to falsely implicate the accused Marzina", is concerned, the same has not at all been made probable much established by any cogent evidence. In the circumstances, the theory so propounded is found to be devoid of substance and falls flat on the ground.

105 of 153 106 FIR No. 180/12 PS - Aman Vihar In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

33. Learned Counsel for accused Marzina @ Jyoti submitted that it is against the law of probable that a major girl who was taken by unknown lady at unknown place and got married with known person, she does not raise any objection and alarm at the time of her marriage.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel that, "it is against the law of probable that a major girl who was taken by unknown lady at unknown place and got married with known person, she does not raise any objection and alarm at the time of her marriage", is concerned, it is evident from the record that PW13 - prosecutrix during her cross examination has specifically deposed that, "I did not raise any alarm when I reached the house of Marzina because I never anticipated whatever had happened as she was taking me for finding out result and I was taken by surprise".

106 of 153 107 FIR No. 180/12 PS - Aman Vihar At the cost of repetition, PW13 - Prosecutrix during her examinationinchief has specifically deposed, which is reproduced and reads as under : "Thereafter, the Maulvi, whom I can identify (not arrested), forcibly got my me married with Nadeem against my wishes and consent (Zabardasti Nikah Kara Diya). All these people, thereafter, got my photographs clicked and thereafter gave me a cold drink and after consuming cold drink, I became unconscious. When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told me that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya)."

Nonraising of hue and cry does not falsify the case of the 107 of 153 108 FIR No. 180/12 PS - Aman Vihar prosecution which is otherwise proved on record by clear, cogent and convincing evidence.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

34. Learned Counsel for accused Nadeem Khan submitted that the statement of PW13 - prosecutrix has not been supported by another prosecution witness.

I have carefully perused and analysed the evidence on record.

108 of 153 109 FIR No. 180/12 PS - Aman Vihar So far as the plea raised by the Learned Counsel for the accused that, 'the statement of PW13 - prosecutrix has not been supported by another prosecution witness', is concerned, at the cost of repetition, as discussed hereinbefore, the testimony of PW13 - prosecutrix has also been found to be corroborated by the testimony of PW12 - Shakila Bano, her mother to whom PW13 Prosecutrix had disclosed the facts relating to the crime shortly after the incident, at the first available opportunity, being relevant u/s 6 and 8 of the Indian Evidence Act, 1872.

At the cost of repetition, PW12 - Shakila Bano during her examinationinchief has deposed which is reproduced and reads as under : "On 19/06/2012 I had gone to the Doctor alongwith my husband for getting medicines from where I went to Tis Hazari Court to meet my lawyer in connection with the private dispute with my neighbour. When I returned home, I did found (find) that my daughter/prosecutrix (name withheld) was not at home. I tried to search for her in the neighbourhood but could not find her. At around 5:00 p.m. My daughter/prosecutrix (name withheld) came home, she appeared to be extremely distorted and scared (ghabrai hui thi). My daughter informed me that one lady by the name of Marzina had come to the 109 of 153 110 FIR No. 180/12 PS - Aman Vihar house and informed her that she had come from the School and had been called by Madam in the school for the result. Thereafter, on the pretext of taking her to the School, Marzina took my daughter to her house. My daughter/prosecutrix (name withheld) further informed me that there she found Nadeem alongwith Hanif and one Maulvi sitting there who without her consent forcibly got her married to Nadeem (Bina Uski Marji Ke Jabardasti Uska Nikah Kara Diya).

 Court Question            :  Who got the Nikah done?
                                                           
 Ans.               
                              
                              :  Molviji.

(Underlined by me) 110 of 153 111 FIR No. 180/12 PS - Aman Vihar Inspite of incisive crossexamination of PW13 prosecutrix and PW12 - Shakeela Bano, her mother, nothing material has been brought out so as to impeach their creditworthiness. They have withstood the rigors of crossexamination without being shaken. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

35. Learned Counsel for accused Nadeem Khan submitted that the IO has not made any public witnesses while arresting the accused or confirming the fact whether the prosecutrix was kept there or not or was there any such room in real or not. Learned Counsel further submitted that IO has not even made inquiries to any person in the spot/incident area.

Learned Counsel for accused Marzina @ Jyoti submitted that no independent/public witness was present at the time of investigation but Police official conducted the investigation in the 111 of 153 112 FIR No. 180/12 PS - Aman Vihar presence of interested witness i.e. PW12 - Shakeela Bano.

I have carefully perused and analysed the evidence on record.

The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it. Though, the neighbourhood may be replete with other residents also.

In case 'State of Rajasthan Vs. Teja Ram & Ors.', AIR 1999 SC 1776, the Hon'ble Supreme Court has held that : "The overinsistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against nonexamination of such a person as a prosecution witness. Otherwise, merely on surmises the Court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who 112 of 153 113 FIR No. 180/12 PS - Aman Vihar have not seen it though the neighbourhood may be replete with other residents also."

As regards the plea raised by the Learned Counsel that, "the IO has not made any public witnesses while arresting the accused or confirming the fact whether the prosecutrix was kept there or not or was there any such room in real or not and that IO has not even made inquiries to any person in the spot/incident area.", is concerned, on careful perusal and analysis of the evidence on record, it is found that PW15 - SI Anita Sharma, IO during her crossexamination has specifically deposed which is reproduced and reads as under : "Public persons were requested to join the investigation but none agreed."

"Efforts were made to verify the fact regarding that Marjina had taken the prosecutrix from her house but no body assisted. I do not recollect the names, addresses and description of those persons. I might have mentioned regarding this fact in the Police diary (Jimni). The police diary was wrote down at the spot."

Nonjoining of the public witness does not falsify the case of the prosecution which is otherwise proved on record by clear, cogent 113 of 153 114 FIR No. 180/12 PS - Aman Vihar and convincing evidence.

It is a matter of common experience that public persons are reluctant to assist the Police in the investigation.

In case Nirmal Singh & Ors. Vs. State 2011 III AD (DELHI) 699, the Hon'ble Delhi High Court has held that : "It is a known fact that the persons of the public are reluctant to join the Police in the investigation of any case as they do not want to undertake unpleasant task of attending the Police Station and the Court for giving evidence."

The mere fact of nonjoining a public witness, will not ipso facto make the evidence of the Police witnesses suspect, unreliable or untrustworthy (Ref. 'Abdul Mura Salim Vs. State' 2005 (8) JCC 1776).

It is also to be noticed that DW4 - Sh. Rashid during his crossexamination recorded on 23/09/2014, conducted by the Learned Addl. PP for the State has also specifically deposed that, "The Nikah ceremony was informed to be held at House No. F7, that is the house of 114 of 153 115 FIR No. 180/12 PS - Aman Vihar accused Marjeena."

The testimony of PW12 - Mrs. Shakeela Bano has been reproduced, discussed and analysed hereinabove. At the cost of repetition, her testimony has been found to be clear, natural, cogent, convincing, inspiring confidence and having a ring of truth. She has withstood the rigors of crossexamination without being shaken. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case. She has deposed regarding the facts as to what she perceived, observed and experienced.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

36. Learned Counsel for accused Nadeem Khan submitted that this case was of elopement.

I have carefully perused and analysed the evidence on record.

115 of 153 116 FIR No. 180/12 PS - Aman Vihar The testimony of PW13 - prosecutrix has been reproduced, discussed and analysed hereinabove. At the cost of repetition, the testimony of PW13 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her statement to suggest that she had any animus against the accused to falsely implicate them in the case.

So far as the theory propounded by the Learned Counsel for the accused Nadeem that "this case was of elopement", is concerned, the same has not at all been made probable much established by any cogent evidence. Moreover, PW13 - prosecutrix during her crossexamination has negated the suggestions that she had eloped with Nadeem having a love affair with him with her own will and consent or that she thereafter married Nadeem by her consent at the house of Marzina because her parents were not agreeable to the relationship.

A futile attempt has been made by the accused Nadeem Khan to save his skin from the clutches of law by way of examination of defence witnesses namely DW1 - Sh. Sanju, S/o Sh. Madan Lal Batra, 116 of 153 117 FIR No. 180/12 PS - Aman Vihar R/o F - 139, DDA Flats, Sultan Puri, Delhi, DW2 - Sh. Idris, S/o Sh. Anwar Hussain, R/o A - 60, Hari Enclave, Aman Vihar, Delhi, DW3 - Sh. Mahender Singh, S/o Sh. Ram Kumar, R/o F - 2/298, Sultan Puri, Delhi, DW4 - Sh. Rasid, S/o Sh. Mazhar Ali, R/o F - 7/71, Sultan Puri, Delhi and DW5 - Sh. Zahid, S/o Sh. Hamid Yar Khan, R/o H - 3/18, Sultan Puri, Delhi.

DW1 - Sh. Sanju is the Owner of the Tailoring Shop who during his examinationinchief has propounded a theory that, "On 12/02/2012, Nadeem had come alongwith one prosecutrix (name withheld) for giving the measurement of blouse stitching of prosecutrix (name withheld). He gave receipt of the same bearing No. 433 dated 12/12/2012 (be read as 12/02/2012) and a delivery was to be made on 18/02/2012 and he can identify that the CHOLI worn by the girl in the photographs Ex. PW12/DX3 to Ex. PW12/DX12 was stitched by him", but the said theory so propounded is merely an afterthought as no suggestion regarding the said theory, so propounded was put to PW13 prosecutrix during her incisive and lengthy cross examination. Nor even a single word regarding the said theory, so 117 of 153 118 FIR No. 180/12 PS - Aman Vihar propounded, was uttered by the accused Nadeem during his statement recorded u/s 313 Cr.P.C. What he has deposed in his statement recorded u/s 313 Cr.P.C., in reply to the Q. No. 28, is reproduced and reads as under : "PW13 visited the shop of one tailor namely Sanju Tailor at DDA Market, Sultan Puri near Shagun Restaurant on 13/02/2013 for giving the measurement/fitting of lehanga for her marriage which she is wearing in the photograph. The lehanga was already purchased by me of her choice from Nangloi, Delhi."

(Underlined by me) The testimony of DW1 - Sanju, the owner of the tailoring shop is totally silent that on 13/02/2012, Nadeem and prosecutrix (name withheld) has come to his shop for giving the measurements/fitting of her lehanga.

In the circumstances, the said theory, so propounded, by DW1 - Sh. Sanju falls flat on the ground and the testimony of DW1 - Sh. Sanju does not inspire confidence and he is a procured witness.

118 of 153 119 FIR No. 180/12 PS - Aman Vihar DW2 - Sh. Idris is the Auto Driver and a known of accused Nadeem Khan, who during his examinationinchief has propounded a theory that, "He knows the girl, shown in the photographs in Ex. PW12/DX3 to Ex. PW12/DX12. She is residing in his neighbourhood. Her brother is also an auto driver and he knows the entire family personally through the brother of girl. The boy shown in the photographs was residing in their house as a tenant. He had taken the boy and the girl shown in the photographs in his auto a few times for touring purpose (INHEY GHUMANEY KE LIYE KAI BAR LEY GAYA THA) and had taken them to the doctor's clinic at Najafgarh road, which is situated towards the right hand side. He had taken them to the doctor's clinic for four/five times. Once he had taken them to Aggarwal Restaurant at Peeragari.", but the said theory, so propounded, not only being vague but also falls flat on the ground in view of as to what the said witness has deposed during his crossexamination as was conducted by the Learned Addl. PP for the State which is reproduced and reads as under : "I cannot tell the dates, moths (months) and year when I tool accused Nadeem and girl shown in the photograph for touring purpose."

119 of 153 120 FIR No. 180/12 PS - Aman Vihar Nor any suggestion regarding the said theory, so propounded, was put to PW13 - prosecutrix during her incisive and lengthy crossexamination.

In the circumstances, the said theory, so propounded, by DW2 - Sh. Idris falls flat on the ground and the testimony of DW2 - Sh. Idris does not inspire confidence and he is a procured witness.

DW3 - Sh. Mahender Singh is the Photographer, during his examinationinchief he has propounded a theory that, "He has been shown photographs Ex. PW12/DX3 to PW12/DX12. These photographs were clicked by him. These photographs were taken in the house, as is also been indicated in the background of the photos. At the time when he clicked these photographs, atmosphere in that house was of happiness." but the said theory, so propounded, falls flat on the ground in view of as to what the said witness has deposed during his crossexamination as was conducted by the Learned Addl. PP for the State which is reproduced and reads as under : 120 of 153 121 FIR No. 180/12 PS - Aman Vihar "I do not recollect the date on which I had clicked the photographs Ex. PW12/DX3 to PW12/DX12. I do not recollect as to on whose call/request, I had gone to click the photographs. Vol. Some customer must have come to call. Much time has elapsed since then. These photographs were taken from a Digital Camera. I do not have the Memory Card of the said photographs. Vol. the memory card is being deleted from time to time after the delivery of the photographs to the customer concerned."

From the testimony of DW3 - Mahender Singh, it is not been indicated as to when, on which date he clicked the photographs, on whose call/request he had gone to click the photographs, where, at place/address he had gone to click the photographs and as to when on which date he gave the delivery of the same, nor he has produced or proved any receipt executed regarding the clicking of the photographs or of its delivery, though, he is running a big Photo Studio and has deposed in his examinationinchief that he is running a photo studio under the name and style of Bharat Studio at F 2/245, near Shani Bazar Road, Sultan Puri, Delhi - 86.

Nor any suggestion regarding the said theory, so propounded, was put to PW13 - prosecutrix during her incisive and lengthy crossexamination. Nor even a single word regarding the said 121 of 153 122 FIR No. 180/12 PS - Aman Vihar theory, so propounded, was uttered by the accused Nadeem during his statement recorded u/s 313 Cr.P.C.

In the circumstances, the said theory, so propounded, by DW3 - Sh. Mahender Singh is found to have no substance and falls flat on the ground and the testimony of DW3 - Sh. Mahender Singh does not inspire confidence and he is a procured witness.

DW4 - Sh. Rasid, is the friend and cousin of accused Nadeem Khan (son of Mausi), who during his examinationinchief he has deposed that, "He knows accused Nadeem and his family for the last 1015 years. Nikah of Nadeem has been performed in his presence with prosecutrix (name withheld) at the residence of accused Marjina R/o Sultan Puri, Delhi. At the time of marriage, around 1015 guests were present. At the time of their marriage, parents of the bride/prosecutrix (name withheld) were also present. He does not know the names of the parents of prosecutrix (name withheld). At the time of their marriage, Zahid, Saleem and many 122 of 153 123 FIR No. 180/12 PS - Aman Vihar others were present. Kaji who performed the marriage was also present whose name he does not not recollect. The atmosphere was of happiness and all were very happy. He has been shown Nikahnama Ex. PW12/DX2 bearing his signature at point B encircled red.", but his testimony falls flat on the ground in view of as to what the said witness has deposed during his crossexamination as was conducted by the Learned Addl. PP for the State which is reproduced and reads as under : "The marriage was performed on 19th July, and it was two years ago. I do not recollect the day of the week on which the marriage was performed."

"I did not receive an invitation card of the marriage of accused Nadeem with prosecutrix. Vol. I was called by accused Nadeem as well as by the parents of prosecutrix (name withheld). Brother of prosecutrix (name withheld) namely Nadeem invited me for the marriage. I was inviting (invited) about one hour prior to the Nikah of accused Nadeem and prosecutrix (name withheld)."

"At this stage the Nikahnama Ex. PW15/D1 is placed before the witness.

Qus. I put to you, can you tell whether the signature of the parents of the brother of prosecutrix (name withheld) are appearing on this Nikahnama Ex. PW15/D1?

Ans. I cannot tell as signature of every witness is obtained at a lonely

123 of 153 124 FIR No. 180/12 PS - Aman Vihar place (Gawah Ke Signature Alag Se Le Ja Kar Hote Hai, Isliye Mai Nahi Bata Sakta)."

On careful perusal and analysis of the testimony of DW4 - Sh. Rashid, it is found that the said witness though deposed to have attended the marriage but is not aware about the correct date of the marriage (19/06/2012) which he attended and has deposed that the marriage was performed on 19th July and it was two years ago, despite the fact that accused Nadeem was related to him as the son of his Mausi (Khala). Nor the theory propounded by DW4 - Sh. Rashid during his crossexamination as reproduced hereinabove that, "he (DW4 - Rashid was invited for the marriage by the parents of prosecutrix (name withheld) as well as by brother of prosecutrix (name withheld) Nadeem", was put to PW13 - prosecutrix during her incisive and lengthy cross examination. Nor the said theory was put to PW12 - Shakeela Bano, mother of the prosecutrix during her incisive and lengthy cross examination. Moreover, DW4 - Rashid could not tell about the signatures of the parents and brother of the prosecutrix (name withheld) appearing on the Nikahnama Ex. PW15/D1. Had he been an invitee to the marriage, had he been a witness to the Nikah, Had the parents and 124 of 153 125 FIR No. 180/12 PS - Aman Vihar brother of the prosecutrix attended and witnessed the marriage, then DW4 - Rashid could have easily answered regarding the signatures of the parents and brother of the prosecutrix (name withheld) on the Nikahnama Ex. PW15/D1.

In the circumstances, the said theory, so propounded, by DW4 - Sh. Rasid is merely an afterthought and falls flat on the ground and the testimony of DW4 - Sh. Rasid does not inspire confidence and he is a procured witness.

DW5 - Sh. Zahid, is the neighbour of accused Nadeem who was running a Coffee & Tea Stall, and had supplied the goods (Samaan) on the day of marriage, who during his examinationinchief propounded a theory that, "he came to know about the marriage of accused Nadeen (Nadeem) and prosecutrix (name withheld) through the maulvi residing in the same street in which he resides.", but his testimony falls flat on the ground in view of as to what the said witness has deposed during his crossexamination as was conducted by the Learned Addl. PP for the State which is reproduced and reads as under : 125 of 153 126 FIR No. 180/12 PS - Aman Vihar "I do not remember the day, month and year of the marriage of accused Nadeem with prosecutrix (name withheld). The order of sending coffee and cold drinks was given for 1015 persons in the morning. Prosecutrix (name withheld) had placed the order for sending the abovesaid articles in the marriage. Prosecutrix (name withheld) visited my coffee shop for placing the said order about 56 days prior to the marriage. I came to know about the marriage of prosecutrix and accused Nadeem first time from the prosecutrix."

"Accused Nadeem and prosecutrix (name withheld) had visited my shop prior to their marriage and informed me that they were going to perform marriage and ordered some goods which (are) to be delivered at the time of marriage."

(Underlined by me) On careful perusal and analysis of the testimony of DW5

- Sh. Zahid, it is found that as to what has been deposed by the said witness during the course of his crossexamination, as reproduced hereinabove, is not corroborating his own theory propounded during his examinationinchief that, "he came to know about the marriage of accused Nadeen (Nadeem) and prosecutrix (name withheld) through the maulvi residing in the same street in which he resides." Moreover, the said theory so propounded by DW5 - Sh.

126 of 153 127 FIR No. 180/12 PS - Aman Vihar Zahid does not find corroboration from the testimony of DW4 - Sh. Rasid, who during his examinationinchief has deposed that, "At the time of their marriage, Zahid (DW5), Saleem and many others were present". Nor the said theory so propounded by DW5 - Sh. Zahid, was put to PW13 - prosecutrix during her incisive and lengthy cross examination. Moreover, DW5 - Zahid during his crossexamination has deposed that the goods were approximately of Rs. 1,000/ and he has, till date, not received the payment of Rs. 1,000/ for the goods supplied by him in the marriage. He could not tell the day, month and year of the marriage. It is strange that a businessman whose payment is pending due does not remember the date of the marriage on which he had made the supplies.

Nor even a single word regarding the said theory, so propounded, by DW5 Zahid was uttered by the accused Nadeem during his statement recorded u/s 313 Cr.P.C.

In the circumstances, the said theory, so propounded, by DW5 - Sh. Zahid is merely an afterthought and falls flat on the ground and the testimony of DW5 - Sh. Zahid does not inspire 127 of 153 128 FIR No. 180/12 PS - Aman Vihar confidence and he is a procured witness.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

37. Learned Counsel for accused Nadeem Khan submitted that PW12 Shakeela Bano has stated in her statement that, "MAINE TERE SAATH SHARIRIK SAMBANDH BANAYE HAI MUJHE JO CHAIYA THA WO MIL GAYA" while PW13 - prosecutrix has stated in her statement, "JO MAINE PANA THA WO PA LIYA", which are totally contradictory.

I have carefully perused and analysed the evidence on record.

It is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

As regards the plea raised by the Learned Counsel for the 128 of 153 129 FIR No. 180/12 PS - Aman Vihar accused that, "PW12 Shakeela Bano has stated in her statement that, "MAINE TERE SAATH SHARIRIK SAMBANDH BANAYE HAI MUJHE JO CHAIYA THA WO MIL GAYA" while PW13 - prosecutrix has stated in her statement, "JO MAINE PANA THA WO PA LIYA", which are totally contradictory", is concerned, PW13 - prosecutrix during her examinationinchief has deposed that : "When I received conscious and came to my senses, I did not find any clothes on my body as well as on the body of Nadeem. On my asking, Nadeem told me that whatever he wanted, he got (Jo Kuch Maine Pana Tha, Pa Liya)."

While, PW12 - Shakeela Bano, mother of the prosecutrix during her examinationinchief has deposed that : "After the Nikah Nadeem gave cold drink to prosecutrix (name withheld). After taking cold drink she lost her conscious and after regaining consciousness she found that both she and the accused Nadeem (correctly identified by the witness) were without clothes. Nadeem thereafter told my daughter that he had made physical relations with her and whatever he wanted he had got. (Maine Tere Sath Sharirik Sambandh Banaye Hain Aur Mujhe Jo Chahiyae Tha Mujhe Mil Gaya)."

129 of 153 130 FIR No. 180/12 PS - Aman Vihar On careful perusal and analysis of the aforesaid narration of the said PWs, it is found that they are similar in essence and corroborates each other. It is the spirit of the testimony which matters and not the words. With the spirit and essence being intact, non similarity of the words in the testimonies do not falsify the case of the prosecution. Moreover, the sight cannot be lost of the fact that even the honest and truthful witness may differ in some details as the powers of observation, retention and reproduction differs with individuals.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

38. Learned Counsel for accused Nadeem Khan submitted that PW12 Shakeela Bano has also admitted in crossexamination that at the time of incident the school of PW13 was closed and she also admitted in her crossexamination 'my daughter is shown to be dressed in Bridal Lengha and make up in all the photographs'. Learned Counsel further submitted that according to the statement of PW12 Shakeela Bano, PW13 Prosecutrix has got married with her own consent. Learned 130 of 153 131 FIR No. 180/12 PS - Aman Vihar Counsel further submitted that PW 13 Prosecutrix has never used the word of threat in her entire statement.

I have carefully perused and analysed the evidence on record.

The testimonies of PW13 Prosecutrix and PW12 Shakeela Bano her mother have been reproduced, discussed and analysed herein before. At the cost of repetition, their testimonies have been found to be clear, cogent, convincing, trustworthy and inspiring confidence. There is nothing in their statements to suggest that they had any animus against the accused to falsely implicate them in the case.

So far as the plea raised by the Learned Counsel that, PW12 Shakeela Bano has also admitted in crossexamination that at the time of incident the school of PW13 was closed and she also admitted in her crossexamination 'my daughter is shown to be dressed in Bridal Lengha and make up in all the photographs', is concerned it is not made clear by the Learned Counsel as to what she intends to convey and as to what benefit she intends to reap from the plea so raised. At the cost of 131 of 153 132 FIR No. 180/12 PS - Aman Vihar repetition, it is a settled principle that statements of the witnesses have to be read as a whole and not in a manner to pick up a sentence in isolation from the entire statement and ignoring its proper reference.

As regards the plea raised by the Learned Counsel for accused Nadeem that, according to the statement of PW12 Shakeela Bano, PW13 Prosecutrix has got married with her own consent, is concerned, with due respect it appears that Learned Counsel for accused has either misread or not read the evidence on record. On careful perusal and analysis of the entire evidence of PW12 Shakeela Bano it is found that she has not deposed a single word to the effect that PW13 prosecutrix has got married with her own consent. At the cost of repetition, PW12 Shakeela Bano has specifically deposed during her examinationinchief which is reproduced and reads as under : "My daughter/prosecutrix (name withheld) further informed me that there she found Nadeem alongwith Hanif and one Maulvi sitting there who without her consent forcibly got her married to Nadeem (Bina Uski Marji Ke Jabardasti Uska Nikah Kara Diya). Court Question : Who got the Nikah done?

Ans. : Molviji.

After the Nikah Nadeem gave cold drink to prosecutrix 132 of 153 133 FIR No. 180/12 PS - Aman Vihar (name withheld). After taking cold drink she lost her conscious and after regaining consciousness she found that both she and the accused Nadeem (correctly identified by the witness) were without clothes. Nadeem thereafter told my daughter that he had made physical relations with her and whatever he wanted he had got. (Maine Tere Sath Sharirik Sambandh Banaye Hain Aur Mujhe Jo Chahiyae Tha Mujhe Mil Gaya)."

So far as the plea raised by the Learned Counsel for accused Nadeem that, " PW 13 Prosecutrix has never used the word of threat in her entire statement", is concerned, on careful perusal and analysis of the evidence, it is found that the plea appears to have been raised by the Learned Counsel for the accused either misreading or not reading the evidence on record. PW13 - Prosecutrix during her examinationinchief has specifically deposed that, "However, Nadeem started coming to my house and started threatening my parents to send me to his house or else I would be killed and hence, my parents and myself were compelled to lodge present complaint with the Police on 03/07/2012." PW13 - prosecutrix during her crossexamination has specifically deposed that, "My father had made a complaint against Nadeem on 23/06/2012 at PS - Aman Vihar. (Vol. He used to threaten 133 of 153 134 FIR No. 180/12 PS - Aman Vihar us that is why my father had made a complaint.)"

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

39. Learned Counsel for accused Nadeem Khan submitted that PW12 - Shakeela Bano, mother of the prosecutrix in her examinationin chief has stated that accused Nadeem was having criminal background but she has not given any proof regarding his criminal record at the time of evidence and she did not lodge the complaint against Smt. Marzina and Maulvi, after the incident.

I have carefully perused and analysed the evidence on record.

As regards the plea raised by the Learned Counsel for accused Nadeem that, "PW12 - Shakeela Bano, mother of the prosecutrix in her examinationinchief has stated that accused Nadeem was having criminal background but she has not given any proof regarding his criminal record at the time of evidence and she did not

134 of 153 135 FIR No. 180/12 PS - Aman Vihar lodge the complaint against Smt. Marzina and Maulvi, after the incident.", is concerned, it is evident from the record that during the crossexamination of PW12 - Shakeela Bano, the said accused did not voice his concern or raised any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. For failure to do so, accused is to blame himself and none else.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

40. Learned Counsel for accused Nadeem Khan submitted that 135 of 153 136 FIR No. 180/12 PS - Aman Vihar PW13 - prosecutrix in her crossexamination has stated that the result of 12th Class had been out before 19/06/2012 and the School was also closed but she voluntarily said that the admissions were going on in the School at that time. She cannot identify her signatures on Ex. PW12/DX2. She does not know who had brought the cold drink. Learned Counsel submitted that her said statement is contradictory to her statement u/s 161Cr.P.C.

I have carefully perused and analysed the evidence on record.

The testimony of PW13 - prosecutrix has been reproduced, discussed and analysed hereinbefore. At the cost of repetition, the testimony of PW13 - prosecutrix has been found to be clear, natural, cogent, convincing and inspiring confidence. There is nothing in her 136 of 153 137 FIR No. 180/12 PS - Aman Vihar statement to suggest that she had any animus against the accused to falsely implicate them in the case. On analysing the entire testimony of PW13 - prosecutrix, it transpires that she has described the scenario implicating the accused to be the authors of the crime, of the committal of the sexual assault upon her by accused Nadeem, abetted by accused Marzina @ Jyoti. Accused have failed to elicit any material or relevant discrepancies or inconsistencies despite her searching crossexamination. The core facts about the committal of the crime by the accused have remained intact.

So far as the plea raised by the Learned Counsel for the accused Nadeem that, "PW13 - prosecutrix in her crossexamination has stated that the result of 12th Class had been out before 19/06/2012 and the School was also closed but she voluntarily said that the admissions were going on in the School at that time. She cannot identify her signatures on Ex. PW12/DX2. She does not know who had brought the cold drink. Her said statement is contradictory to her statement u/s 161 Cr.P.C.", is concerned, it is not made clear by the Learned Counsel for the accused as to what she intends to convey and as to what benefit she intends to 137 of 153 138 FIR No. 180/12 PS - Aman Vihar reap from the plea so raised. In fact, so called contradictions are the 'clarifications' or 'elaboration' of facts in response to the questions put to her (prosecutrix) during the crossexamination which she was not supposed to state in her statement to the Police. The core facts about the committal of crime by the accused have remained intact.

PW13 - Prosecutrix during her crossexamination has specifically deposed which is reproduced and reads as under : "It is correct that my 12th class result had already been declared prior to 19/06/2012 and had also come in the newspaper. It is wrong to suggest that my School was closed for summer vacations on 19/06/2012. (Vol. Admissions were going on in the School at that time.) I only know Hindi and English but it is wrong to suggest that I can read and write Urdu. It is correct that Ex. PW12/DX1 is in my handwriting and my signatures appearing at point 'A'. Maulvi had forcibly made me to write this document. I had told the Police that Maulvi had made me to write this document.

At this stage, the witness is confronted with her complaint Ex. PW13/A wherein this fact did not finds mention. It is correct that Ex. PW13/DX2 is the Nikahnama. (Vol. Maulvi had told me that it was my Nikahnama written in Urdu). I cannot identify my signatures on Ex. PW12/DX2. I do not know who signed this document first and who signed this document later. I did not tell the Maulvi about my name, father's name and address."

138 of 153 139 FIR No. 180/12 PS - Aman Vihar "I do not know who had brought the cold drink."

(Underlined by me) There is nothing in the crossexamination of PW13 - prosecutrix so as to impeach her creditworthiness. She has withstood the rigors of crossexamination without being shaken. Her version on the core spectrum of crime has remained intact.

So far as the plea raised by the Learned Counsel that PW13 - prosecutrix has deposed in her crossexamination that, "Maulvi had forcibly made me to write this document (Ex. PW12/DX1).", and that she has been confronted with her complaint Ex. PW13/A wherein this fact did not find mention", is concerned, at the cost of repetition, it is pertinent to reproduce the relevant part of crossexamination of PW13

- prosecutrix which reads as under : "It is correct that Ex. PW12/DX1 is in my handwriting and my signatures appearing at point 'A'. Maulvi had forcibly made me to write this document. I had told the Police that Maulvi had made me to write this document.

At this stage, the witness is confronted with her complaint Ex. PW13/A wherein this fact did not finds mention."

139 of 153 140 FIR No. 180/12 PS - Aman Vihar (Underlined by me) In view of above, it is an explainable variation and does not in any way, adversely affect the case of the prosecution, for the reason that PW13 - prosecutrix has categorically stated that she had informed the Police as to what she stated under oath before the Court but why it was not so recorded in her statement to the Police/complaint Ex. PW13/A recorded by the Investigating Officer PW15 SI Anita Sharma, would be a reason best known to the Investigating Officer. Strangely when PW15 - SI Anita Sharma, IO was being crossexamined no such question was put to her as to why she did not completely record the statement of the witness/PW13 - prosecutrix or whether this witness had made such aforementioned statement.

In case titled as 'Kuria & Anr. Vs. State of Rajasthan', 2012 XI AD (S.C) 376, while dealing with a similar situation, where witness stated under oath before the Court that he had informed the Police of what he stated under oath before the Court but it was not so recorded in his statement under Section 161 Cr.P.C. recorded by the Investigating Officer (IO) the Hon'ble Supreme Court has held the 140 of 153 141 FIR No. 180/12 PS - Aman Vihar reason for the same would be best known to the Investigating Officer (IO). (Para 20 & 21).

Para 20 and 21 of Kuria's Case (Supra) reads as under :

20. These cannot be termed as contradictions between the statements of the witnesses. They are explainable variations which are likely to occur in the normal course and do not, in any way, adversely affect the case of the prosecution. Thus, there are no material contradictions in the statement of the witnesses or the documents, nor can the presence of PW15 be doubted at the place of occurrence.

21. For instance PW15, in his crossexamination, had stated before the Court that Laleng had twisted the neck of the deceased. According to the accused, it was not so recorded in his statement under Section 161, Exhibit D/2 upon which he explained that he had stated before the Police the same thing, but he does not know why the Police did not take note of the same. Similarly, he also said that he had informed the Police that the four named accused had dragged the body of the deceased and thrown it near the hand pump outside their house, but he does not know why it was not so noted in Exhibit D/2. There are some variations or insignificant improvements in the statements of PW3 and PW7. According to the learned counsel appearing for the appellants, these improvements are of such nature that they make the statement of these witnesses unbelievable and unreliable. We are again not impressed with this contention. The witnesses have stated that they had informed the Police of what they stated under oath before the court, but why it was not so recorded in their statements under Section 161 recorded by the Investigating Officer would be a reason best known to the Investigating Officer, PW16, was being crossexamined, no such question was put to 141 of 153 142 FIR No. 180/12 PS - Aman Vihar him as to why he did not completely record the statements of the witnesses or whether these witnesses had made such aforementioned statements. Improvements or variations of the statements of the witnesses should be of such nature that it would create a definite doubt in the mind of the Court that the witnesses are trying to state something which is not true and which is not duly corroborated by the statements of the other witnesses. That is not the situation here. These improvements do not create any legal impediment in accepting the statements of PW3, PW4, PW7 and PW15 made under oath."

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

41. Learned Counsel for accused Marzina @ Jyoti submitted that the Investigation Officer prepared site plan before registration of the FIR but the FIR number is existed on the site plan.

I have carefully perused and analysed the evidence on record.

So far as the plea raised by the Learned Counsel for the accused that, "the Investigation Officer prepared site plan before registration of the FIR but the FIR number is existed on the site plan", is 142 of 153 143 FIR No. 180/12 PS - Aman Vihar concerned, PW15 SI Anita Sharma, IO during her examinationin chief has specifically deposed that, "she prepared rukka Ex. PW15/A, bearing her signature at point 'A' and handed over the same to Duty Officer for registration of the FIR. Thereafter, she alongwith complainant, Lady Constable Samnta and HC Sushil reached at A794, Hari Enclave, Suleman Nagar, from where Marjina @ Jyoti had taken away prosecutrix (name withheld) and she prepared the site plan at the instance of prosecutrix and the same is Ex. PW15/B, bearing her signature at point 'A'. Thereafter, they reached at F7/261, Sultan Puri, Delhi and there at the instance of the complainant she prepared the site plan where accused forcibly married with her and committed rape upon her which is Ex. PW15/C, bearing her signature at point 'A'. Constable Mohit came at the spot and handed over to her the copy of FIR and original rukka." It is evident from the record that during the cross examination of PW15 SI Anita Sharma, IO none of the said accused voiced their concerns or raise any apprehension on the aspect regarding which the plea has been raised. She was the only competent witness, who would have been fully capable of explaining correctly the factual situation. For such failure accused is to blame herself and none else.

143 of 153 144 FIR No. 180/12 PS - Aman Vihar At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

In the circumstances, there is no substance in the plea so raised by the Learned Counsel for the accused.

42. Learned Counsel for accused Marzina @Jyoti submitted that the victim/complainant is major but she was counselled by NGO Smt. Shashi Sharma, which is admitted by PW12 Ms. Shakeela Bano, mother of the complainant, who stated in her examinationinchief that, "her daughter was counselled by the NGO", however, the prosecution did not make her the witness in the present case.

I have carefully perused and analysed the evidence on 144 of 153 145 FIR No. 180/12 PS - Aman Vihar record.

So far as the plea raised by the Learned Counsel for the accused that, "the victim/complainant is major but she was counselled by NGO Smt. Shashi Sharma, which is admitted by PW12 Ms. Shakeela Bano, mother of the complainant, who stated in her examinationinchief that, "her daughter was counselled by the NGO", however, the prosecution did not make her the witness in the present case", is concerned, it is not made clear by the Learned Counsel as to what he intends to convey from the said plea so raised. Does he intend to convey that counseling through NGO be done only for the minor victim/complainant. If it is so, it is not permissible as every victim girl be it a minor or major must be given an opportunity for counseling by NGO Counsellor, in the interest of justice and for fair play. The sight cannot be lost of the fact that, sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscience - offending her self esteem and dignity. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or 145 of 153 146 FIR No. 180/12 PS - Aman Vihar before the Police as it involves her prestige as well as prestige of her family.

The Hon'ble Supreme Court in Para 13 in case Om Prakash Vs. State of Uttar Pradesh AIR 2006 SC 2214 has interalia held : "13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case......"

In the case of 'Wahid Khan Vs. State of Madhya Pradesh', (2010) 2 SCC 9, the Hon'ble Supreme Court held : "It is a matter of common law that in Indian society any girl or woman would not make such allegations against a person as such she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable 146 of 153 147 FIR No. 180/12 PS - Aman Vihar groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."

So far as nonproduction of the witness, NGO Counselor Ms. Shashi Sharma is concerned, it is evident from the record that during the crossexamination of PW15 SI Anita Sharma, IO, none of the said accused voiced their concerns or raised any apprehension regarding the nonexamination of NGO Counselor Ms. Shashi Sharma. She was the only competent witness who would have been fully capable of explaining correctly the factual situation. In such a situation, the accused cannot be heard saying that since the material witness was withheld by the prosecution therefore, adverse inference should be drawn against the prosecution.

At the cost of repetition, recently in case 'Mahavir Singh Vs. State of Haryana', (2014) 6 SCC 716, the Hon'ble Supreme Court has observed that it is settled legal proposition that in case the question is 147 of 153 148 FIR No. 180/12 PS - Aman Vihar not put to the witness in crossexamination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised.

PW13 Prosecutrix during her examinationinchief has specifically deposed that, "when I came to the Police Station with some representative of NGO and informed the Police as to what has happened, my statement was recorded which is Ex. PW13/A bearing my signatures at point 'A' and signatures of the representative of the NGO at point 'B'. After which the present FIR was registered". PW15 SI Anita Sharma, IO during her examinationinchief has specifically deposed that, "on 03/07/2012, she was posted as Sub Inspector in PS Sultan Puri. On that day, she was called at PS Aman Vihar. She reached in PS Aman Vihar where she met complainant/prosecutrix (name withheld) alongwith her mother Shakila Bano and her father Mohd. Hasim. She recorded statement of prosecutrix (name withheld) which is already exhibited as Ex. PW3/A (be read as Ex. PW13/A), bearing her signature at point 'A', attested by her at point 'C', in the presence of NGO Shashi Sharma who also signed the said statement at point 'B'".

148 of 153 149 FIR No. 180/12 PS - Aman Vihar PW13 Prosecutrix has proved her statement made to the police Ex. PW13/A bearing her signature at Point 'A' while PW15 SI Anita Sharma, IO has proved her attestation made thereon at Point 'C'.

In the circumstances, the examination of NGO Counselor Ms. Shashi Sharma would have only been a repetition or duplication of the evidence already adduced, therefore, for the nonexamination of NGO Counselor Ms. Shashi Sharma, the prosecution case cannot be termed as suffering from a deficiency and withholding of a material witness.

In case 'Narain Singh Vs. State' 2013 I AD (DELHI) 685, the Hon'ble Delhi High Court after referring to the cases, 'Pal Singh Vs. State of U.P.', (1979) 4 SCC 345, 'State of U.P. Vs. Anil Singh', AIR 1988 SC 1998 and 'Krishna Mochi Vs. State of Bihar', 2002 IV AD (S.C.) 45 held that, once it is held that the prosecution evidence is reliable and trustworthy and proves the offence, failure to examine other witnesses is not fatal. Nonexamination of further witnesses does not 149 of 153 150 FIR No. 180/12 PS - Aman Vihar affect the credibility of the witnesses relied upon. It is quality of the evidence and not the number of witnesses that matters.

The Hon'ble Supreme Court in case "Takhaji Hiraji Vs Thakore Kubersing Chamansing", 2001 IV AD (S.C.) 393 has observed that : "It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which would have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced. Non examination of such other witnesses may not be material. In such a case the Court ought to scrutinies the worth of the evidence adduced. The Court of facts must ask itself Whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is 150 of 153 151 FIR No. 180/12 PS - Aman Vihar unimpeachable the Court can safely act upon it uninfluenced by the factum of nonexamination of other witnesses."

43. In view of above and in the circumstances, prosecution has thus categorically proved beyond shadows of all reasonable doubts that on 19/06/2012, at about 11:00 a.m. at H. No. A794, Hari Enclave, Chotti Masjid, Kirari, Suleman Nagar, Delhi, accused Marzina @ Jyoti, in furtherance of their common intention with accused Nadeem Khan abducted PW13 prosecutrix aged around 21 years (to be exact 21 years, 05 months and 22 days) with intent to compel her for marriage or to seduce her to illicit intercourse, on the pretext that she (prosecutrix) has been called by her madam/teacher in the School as she had got good result in her 12th Board Examination and that in furtherance of their intention with accused Nadeem Khan, accused Marzina @ Jyoti instead of taking the prosecutrix to her School, took her at H. No. - F7/261, Sultan Puri, Delhi, where prosecutrix was compelled for her marriage and forcibly her marriage (Nikah) was got performed with accused Nadeem Khan against her wishes and without her consent and thereafter prosecutrix was given a cold drink laced with some intoxicating/stupefying substance, by accused Nadeem Khan, after 151 of 153 152 FIR No. 180/12 PS - Aman Vihar consuming the cold drink she (prosecutrix) became unconscious and that accused Marzina @ Jyoti abetted the commission of rape by accused Nadeem Khan upon the prosecutrix and that accused Nadeem Khan committed rape upon the prosecutrix, on regaining consciousness, she (prosecutrix) did not find any clothes on her body as well as on the body of the accused Nadeem Khan and on being asked by the prosecutrix, accused Nadeem Khan told her that whatever he wanted he has got (Jo Kuch Maine Pana Tha, Pa Liya).

I accordingly hold accused Nadeem Khan and Marzina @ Jyoti guilty for the offence punishable u/s 366/34 IPC. Accused Nadeem is also hold guilty for the offences punishable u/s 328/376 IPC. Accused Marzina @ Jyoti is also hold guilty for the offence punishable u/s 376 r/w Section 109 IPC and convict them thereunder.

44. In view of above discussion, I am of the considered opinion that as far as the involvement of the accused Nadeem Khan and Marzina @ Jyoti in the commission of the offence u/s 366/34 IPC and that of accused Nadeem Khan also in the commission of offences punishable u/s 328/376 IPC and that of accused Marzina @ Jyoti also in the commission 152 of 153 153 FIR No. 180/12 PS - Aman Vihar of the offence punishable u/s 376 r/w Section 109 IPC is concerned, the same is sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has been able to bring the guilt home to the accused Nadeem Khan and Marzina @ Jyoti beyond shadows of all reasonable doubts and there is no room for hypothesis, consistent with that of innocence of accused. I, therefore, hold accused Nadeem Khan and Marzina @ Jyoti guilty for the offence punishable u/s 366/34 IPC. Accused Nadeem is also hold guilty for the offences punishable u/s 328/376 IPC. Accused Marzina @ Jyoti is also hold guilty for the offence punishable u/s 376 r/w Section 109 IPC and convict them thereunder.

Announced in the open Court (MAHESH CHANDER GUPTA) on 20th Day of July, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 153 of 153

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State vs . 1. Nadeem Khan on 20 July, 2015