4.2015 vs Unknown on 30 July, 2016

[Cites 56, Cited by 0]

Delhi District Court

4.2015 vs Unknown on 30 July, 2016

                   IN THE COURT OF SHRI SANJIV JAIN, 
               ADDITIONAL SESSIONS JUDGE  SPECIAL. FAST 
               TRACK COURT : SAKET COURTS: NEW DELHI.

         Unique Case ID No. 02406R0238772015
         SC No.   :   118/15 and New SC No. 1590/2016
         FIR No.  :  273/15
         U/s.       :   376 IPC 
         PS       :   New Friends Colony, New Delhi. 

         State (Govt. of NCT of Delhi)                       ........... Complainant

                                         Versus
         Mahmood Farooqui
         S/o Mahboob Rahman
         R/o H. No. 23, II Floor, 
         Sukhdev Vihar, New Delhi.                                    .........Accused

         Date of Institution                                 :   07.08.2015
         Judgment reserved for orders on                     :   30.05.2016  
         Date o0f pronouncement                              :   30.07.2016

                                        J U D G M E N T
                    FACTS :
         1.

The quest in all criminal trials is to arrive at the truth and therefore, the role of the Judge is to cull out the true facts from the evidence led before him and ensure that guilty does not go scotfree and innocent's life and liberty is not jeopardised. This role of the Judge has been explained in the case of Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 345 thus:

A criminal trial is a judicial examination of the issues in the cases and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact in FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 1/161 issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings, the controlling question being the guilt or innocence of the accused. Since the object is to meet out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not be an isolated scrutiny.

2. This case vide FIR no. 273/15 u/s 376 IPC was registered at the police station New Friends Colony on 19.06.2015 on the complaint of the prosecutrix ( name withheld to protect her identity).

3. The facts alleged in the complaint are as under: I am student of Columbia University in NYC and a Fulbright fellow affiliated with Delhi University History Department. I am finishing up my PHD field work on Hindi Literature + the Nath Sampraday.

I moved to Delhi in June 2014 as a Fulbright fellow looking for contacts for my work in Gorakhpur and was put in contact with Mr. Mahmood Farooqi (hereinafter called the accused) that month through common friends, particularly Danish Hussain.

On March 28th 2015, I called Mr. Farooqi to inform him I would need tickets to his performance the next day. He invited me over his house for dinner that night. Around 4 'O clock, he called me + informed we would be going to a wedding instead, with who I presumed would be his wife.

I arrived a bit late at 9 p.m. IST and saw two students leaving the house. I said Hello and FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 2/161 went upstairs. His friend Ashish Singh answered the door. Mahmood was very intoxicated and crying on Ashish. He asked me to go into the other room, his office. After 20 minutes, I left the office to smoke a cigarette on the porch and he told me to come, sit down.

I asked what was wrong and gave him a hug. I asked then if we needed a group hug and asked them to tell me what happened. Mahmood told Ashish to leave. He said Darrain would come. Ashish left. When he left, Mahmood called Darrain. Darrain was on speaker phone + said he could not come. I called him when Mahmood left the room. I told him how drunk he was and asked what was wrong. I asked him to come. He said he could not and he would talk to me the next day.

Mahmood came back + we talked. We were talking for a while. He kissed me. I told him that I didn't think that this was what he needed. He kept towards kissing and saying what a great woman I am. He said he wanted to suck me. I said no. We were both on the couch. He started pulling my underwear down as I pulled it up from other side. I was afraid he would rip my dress and told him not to. Then he pinned my arms down. He forced oral sex on me. I was scared. He was strong. I didn't want to get more hurt. I just wanted him to stop. I froze. Finally, I pretended to have orgasm. He tried again but then the door bell rang. His two friends returned. I tried to leave. I ordered a MERU and started texting our friend Danish Hussain. I told Ashish I wanted to go and he said that if his wife Anusha didn't return I have to feed him. The MERU left. I tried to get rickshaw and they wouldn't let me. Said it was too dangerous. Finally, Anusha returned and Mahmood said I had to go. Ashish called a taxi. When I got in the car, I called Danish Hussain immediately. I told him everything that happened.

I want to take legal action against Mahmood Farooqi for his wrong doing. I do not want to go through medical examination.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 3/161

4. The prosecutrix was taken to AIIMS for her medical examination vide MLC no. 8353/15 where she refused for her internal examination. She was got counseled from Ms. Sushma, member of NGO. IO / WSI Shanti collected the emails exchanged between the accused, his wife Anusha and the prosecutrix. The accused had been living on the second floor at 23 Sukhdev Vihar, New Friends Colony, Delhi as tenant where the alleged incident took place. He was arrested. He was taken to AIIMS for his potency test. On 20.06.2015, statement of the prosecutrix under section 164 Cr.P.C. was got recorded where she alleged that the accused forced oral sex on her. During the investigation, she revealed that she had received a call from the friend of the accused to take care of him as he was under intoxication. After sometime he expressed his desire to kiss her private parts and started removing her clothes. When she refused, he pulled down her underwear and caught her shoulders. He thereafter committed oral sex on her forcibly. Statement of Murtaza Danish was recorded. He stated that the prosecutrix had sent him the text messages with regard to the wrong committed by the accused. In her supplementary statement, the prosecutrix stated that after the incident she was extremely upset and disturbed. She also wrote to her Advisor Allison that she was sexually assaulted and was having a very difficult time. She expressed her desire to come home. She left India on April 14 and sent strongly worded emails to the accused as to what he did with her. She returned to India on 06.06.2015 and lodged the report on 19.06.2015.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 4/161

5. Effort was made to recover the laptop of the accused but it could not be recovered. Section 201 IPC was added. The exhibits were sent to the FSL Rohini on 14.07.2015. Call details of the accused's mobile no. 9818389291 and prosecutrix mobile no. 7042132004 were collected from the service provider. Investigation revealed that the location of the prosecutrix and the accused were at the tower on house no. 12 Sukhdev Vihar on 28.03.2015 during the period from 20:47 hrs. to 22:37 hrs. Copy of the Lease Agreement of the house was collected. Copy of the passport of the prosecutrix and other documents were also collected. After the investigation, the chargesheet u/s 376/201 IPC was filed against the accused. On 21.08.2015, the mobile phone and laptop of the prosecutrix were sent to the FSL, Rohini. The report was collected on 21.09.2015 and submitted in the Court. COMMITTAL :

6. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court on 07.08.2015.

CHARGE :

7. Prima facie case was made out vide separate order dated 02.09.2015. The charge was framed against the accused for the offence punishable under section 376 IPC to which he pleaded not guilty and claimed trial. The matter was listed for admission and denial u/s 294 Cr.P.C on an application moved on behalf of the State.

8. Following documents were admitted by the accused during the admission and denial vide proceedings dated 09.09.2015.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 5/161 i. Call details record (CDR) of mobile no. 9818389291 of the accused for the period from 01.03.2015 to 31.03.2015. (Ex. AD/ A 1 to A40).

ii. Call details record (CDR) of mobile no. 7042132004 of the prosecutrix for the period from 01.03.2015 to 31.03.2015. (Ex. AD/D1 to D14.) iii. Certificates under section 65B of the Evidence Act qua the calls on both the mobiles Ex. AD/P. iv. Lease agreement dated 15.10.2010 between Ms. Raj Rani and the accused for the period from 14.10.2010 till 14.10.2012 and the Lease agreement dated 31.10.2014, effective from 15.10.2014 between Ms. Raj Rani and the accused and Anusha Rizvi for the period from 15.10.2014 till 14.10.2016 in respect of the second floor of 23, Sukhdev Vihar, New Delhi 110025. (Ex. AD/G 1 to G8 and Ex AD/H1 to H11).

v. All India Institute of Medical Sciences, MLC No. 8353/2015 bearing UHID 101061423 dated 19.06.2015 at 10.46 pm of the prosecutrix. (Ex. AD/M).

vi. All India Institute of Medical Sciences, MLC No. 8384/2015 bearing UHID 101063088 dated 20.06.2015 at 4.06pm of the accused. (Ex. AD/N).

vii. Medical examination qua potency test of the accused. (Ex. AD/O).

9. Ld. Public prosecutor vide submissions dated 09.09.2015 dropped the witnesses namely Ms. Poonam Girdhani, Ravinder Kumar, Ankit Chadha, the associates of the accused, Dr. FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 6/161 Manjul who prepared the MLC of the accused and Dr. Dhani Priya who prepared the MLC of the prosecutrix. During the proceedings, the call details / text messages in respect of mobile no. 7042132004 and 9643899194 of the prosecutrix for the period from January 2015 till 20.06.2015, mobile no. 9818389291 of the accused for the period from 28.03.2015 to 20.06.2015, mobile no. 9873078449 of Danish Hussain for the period from 28.03.2015 to 20.06.2015 and mobile no. 9818846416 of Darrain Shahini of the period from 28.03.2015 to 20.06.2015 were preserved / called. During the proceedings dated 05.10.2015 to 16.11.2015 the identity of the alphanumeric hexadecimal string 4C66BA9549657824 shown in the call details of the prosecutrix at 22:13:10 and at 22:13:12 hours on 28.03.2015 which according to the accused represents the name of the sender DMMERUCB was called. The call details in respect of mobile no. 8860693041 of Mashood Ur Rehman Farooqui @ Roomi, brother of the accused of 28.03.2015 between 9 p.m. to 12 mid night alongwith the location chart were also preserved / called. Call detail records in respect of the mobile no. 9999578653 of Ashish Singh for the period from 25.03.2015 to 29.03.2015 and 19.06.2015 to 08.07.2015 were preserved / called vide order dated 23.10.2015.

10. During trial, an application was moved u/s 311 Cr.P.C. by the prosecution for calling the prosecutrix and Anuj Pawra which request qua Anuj Pawra was allowed vide order dated 21.12.2015. Another application u/s 311 Cr.P.C. was moved on behalf of the prosecutrix / State to recall PW12 / Ashish Singh for re examination which application was dismissed vide order dated FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 7/161 09.12.2015. Against that order, the prosecutrix invoked the jurisdiction of the Hon'ble Delhi High Court u/s 482 Cr.P.C. and vide order dated 12.02.2016, the application was allowed. PROSECUTION EVIDENCE :

11. To substantiate its case, the prosecution examined as many as twenty witnesses.

PW 1 ASI Ran Singh recorded the FIR Ex.

PW1/A on receipt of rukka from the SHO on 19.06.2015. He made endorsement on the rukka Ex.PW1/B and handed over further investigation to SI Shanti. He issued certificate u/s 65B of the Evidence Act Ex. PW 1/C. He stated that portion C to C on the rukka Mark X had already been written when he recorded the FIR.

PW 2 Chander Shekar, Nodal Officer, Bharti Airtel Ltd, proved the certified copy of the CDR of mobile nos. 9818389291 and 7042132004 for the period from 01.03.2015 to 31.03.2015 Ex. AD/A1 to A40 and Ex. AD/D1 to D14 respectively. He proved the certificates u/s 65B of the Evidence Act Ex. AD/P. He also proved the Cell ID chart with regard to the location of above mobile numbers on 28.03.2015. He stated that as per the Cell ID Chart, on 28.03.2015 from 19:42:27 to 23:23:03, the location of mobile No. 9818389291 was at the tower location installed at H. No. 12, FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 8/161 Sukhdev Vihar, New Delhi.

He stated that as per the Cell ID Chart, on 28.03.2015 from 20:54:34 hours to 22:37:14, the location of mobile No. 7042132004 was at the tower location installed at H. No. 12, Sukhdev Vihar, New Delhi and thereafter at 22:56:47, the outgoing call of the said mobile number started from the said location and ended in the location of the tower installed at Shiksha Devi W/o Ram Prakash, 18, Hauz Khas Village, New Delhi. He stated that the cell ID of tower at House no. 12 Sukhdev Vihar is 33012_27985 and cell ID of tower at Hauz Khas is 33013_59345. He proved the Cell ID chart of relevant date Ex PW2/B. On being further examined, he proved the call details record Ex. PW 2/C of mobile No. 9818389291 for the period from 28.03.2015 to 20.06.2015. He proved the certificate u/s 65B of the Evidence Act Ex.PW2/E. He also proved the Cell ID Chart of the aforesaid CDR Ex.PW2/F. He stated that as per the calls and SMS entries in Ex. PW2/C, on 12.04.2015 from 20:19:29 to 20:25:44, a call was made from 9818389291 to 9899973769 at 20:20:57 for 187 seconds. Calls were also made from 9818389291 to 9899973769 on 13.04.2015 at 20:22:47 for 436 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 9/161 seconds; On 14.04.2015 at 19:24:23 for 530 seconds; On 14.04.2015 at 19:54:48 for 65 seconds; On 15.04.2015 at 19:36:22 for 763 seconds and on 16.04.2015 at 20:17:08 for 712 seconds. He stated that 32025_21095 is the cell ID for the number 9818389291 in Ex.PW2/C and the location of the above cell was at the tower located at Mbts_Chattarpur Farms, New Delhi. He stated that the unanswered calls, missed calls and whatsapp details are not reflected in the CDR.

He stated that as per Ex. PW 2/C, on 20.06.2015 there was an outgoing message from 9818389291 to 9873078449 at 07:18:56 and two outgoing calls from 9818389291 to 9873078449 i.e at 08:25:15 of the duration of 248 seconds and at 08:29:38 of the duration of 497 seconds. PW 3 Ct. Shyam Sunder was present when the prosecutrix came in the police station and handed over her laptop, mobile phone, dress, photo and the documents Ex.3/C1 to Ex.3/C20 to the IO which she seized vide memo Ex.

PW3/A. He identified the photograph Ex.PW3/B. PW 4 Ct. Ramesh Kumar accompanied the IO WSI Shanti to House no. 23, 2nd Floor, Sukhdev Vihar from where the accused was arrested vide FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 10/161 memo Ex PW4/A. PW 5 is the prosecutrix. She testified on oath that she is a US National and had come to India in June 2014 to complete her dissertation work on "Nath Sampradaya" particularly in Gorakhpur and for this, she had received Fulbright Fellowship. She wanted to find contacts for her research in Gorakhpur. She did not know anyone in Gorakhpur. Since she knew Danish Hussaini that he was from Eastern UP, she contacted him as she was in touch with him through her friend Arjun Bali whom she had met in 2006 in India. She asked Danish if he has any contact with anyone in Gorakhpur. Danish then suggested her to contact Mahmood Farooqui because his family is from Gorakhpur. Sometime in June 2014, she contacted the accused and asked him if he could meet her regarding her research. He agreed to meet her at Archive Library, Teen Murti where she was conducting her research. In late June 2014, they met in the canteen outside the library and thereafter, he put her in contact with different scholars. They communicated on and off by sending text messages, however, she met him for the second time in Nagaland Cafe with her friend who was a student of Phd from Columbia FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 11/161 University and working on Indian Drama. She was thereafter in communication with him through text messages off and on.

She stated that she met the accused for the third time in January, 2015. He invited her to attend a dinner party in his house at Sukhdev Vihar, New Delhi. At that time, he told her that he and his wife Anusha would be going to Gorakhpur and he invited her to come with them. Initially she said "yes", but later she realized that the dates would overlap with the dates with her academic advisor at Jaipur, she called him and told that she would not be able to go to Gorakhpur with him. She then went to Jaipur and met her advisor.

In late January / early February, 2015, after her return from Jaipur, she received his call. He asked her where she was. She told him that she is in Hauz Khas village. It was around 2.30 P.M. He told her that he would be coming to Hauz Khas with his friend Darrain Shahidi. After half an hour, he came with his friend and met her. She finding him drunk asked "Have you been drinking already". He replied in affirmative and laughed. They all went to Yeti Cafe in Hauz Khas village where they ate food and had beers. He thereafter suggested to go to his friend, FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 12/161 Radhika's house at Hauz Khas. They all went there at about 4 p.m. There he again started taking drinks. They stayed there for few hours. Someone suggested to go to Nagaland Kitchen to have something to eat. They all went there in the car of the accused. Darrain was on the pillion seat. The driver was driving the car. She and the accused were sitting on the rear seat of the car. Radhika was alone in another car. During traveling, he kissed her. She kissed him back. When they reached Nagaland Kitchen, he received a call from someone. He left immediately. Radhika, Darrain and she remained there. During that period, she came to know from Radhika and Darrain about his drinking problem.

She stated that for few weeks, they were not in contact. He again invited her to his house for dinner with his wife in mid/end of February, 2015. She went there. They all took drinks. When his wife was going in and out of her room, they exchanged a kiss. He asked her to stay over and sleep on 'diwan' ( single bed) but she refused, saying that she has already called an Uber taxi. She then left as she did not want this to go any further.

After sometime, he called her and asked if FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 13/161 she has alcohol in her house. It was a dry day. Since, she had recently returned from America and bought a bottle of liquor from the duty free shop, she replied in affirmative. He sent his driver to pick the bottle of Vodka and thanked her.

Next time she invited him to her birthday party at Hauz Khas village. She also invited Darrain and the wife of the accused. Initially, they all agreed but later at night, Darrain told her that the accused is too intoxicated to attend the party so no one came to her party.

She stated that on 28.03.2015 she went to her friend's house at Jangpura Extension (Sonal Shah's house) at about 10 a.m to have coffee where Sonal Shah expressed her desire to learn Urdu. She told Sonal Shah that Mahmood has a performance the next day in Urdu and asked her if she wanted to go there. She replied in affirmative. She then called him from Sonal's house from her mobile number 7042132004 and asked him if he could save two seats (for her and Sonal). He replied in affirmative. He also invited her to his house for dinner on that night (28.03.2015). At about 4 p.m., she spoke to him. He told her that his plan had changed. He asked her if she would like to attend a wedding instead.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 14/161 She replied in affirmative. He then asked her to bring Rs.1,000/ as gift. She assumed that she would accompany him with his wife to the wedding. She was to reach at his house at 8 O'clock. She prepared herself for the wedding, wore a dress and sandals since she was running late. Sometime after 8 p.m., she sent him a text message that she is running late. She came at his house at around 9 p.m. in a MERU cab. While getting down, she saw his two students leaving his house. They and she exchanged a hello. One of them was Ankit whom she knew through the accused. She went upstairs to the second floor and rang the door bell of his house. Ashish Singh, his friend, who was also from Gorakhpur opened the door. He introduced Ashish to her. She followed Ashish in the living room where he was sitting on a diwan. Ashish also sat besides him. At that time, he was crying since intoxicated. Ashish was comforting him. She asked him what is wrong with him but he asked her to give them time to talk alone. He also asked her to go in his office which was on the other side of the kitchen and take his cat. She liked his cat. She remained in his room/office for about 20 minutes and took a selfie with the cat. Since she wanted to have cigarette, she FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 15/161 looked around but did not find an ashtray in the office. She decided to smoke in the balcony for which she was required to pass through the living room. The accused saw her and asked her to sit on a chair next to his diwan. He was upset. Ashish was also sitting next to him. She started making jokes asking him what was wrong. She tried to make him laugh. She also saw Ashish concerned about him and his condition. He was crying so hard that his mucus was running down upto his mustache. She decided to get a drink for herself. She told him about this. Then he asked her to get a drink for him as well. She went in the kitchen and poured a vodka and water. She did not think that he needs anything else to drink. She poured a very light drink mostly made of water for him. She brought two drinks back to the living room where he and Ashish were sitting. He soon told Ashish to go and said that Darrain would be coming there. Ashish then left. She started asking him more about what was wrong, why he was crying. He mentioned about his wife and mother saying that he was very upset with them. His answers were dramatic. At that time, she and the accused were sitting on diwan. He picked his phone and dialled Darrain, put the speaker of his mobile on FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 16/161 and asked Darrain if he would be coming to his house but Darrain said 'no' as he has just got out of work ( just finished his work). He told him that he would come on the next day. He then put the phone down. He got up and left the room. He went somewhere. He also knocked the vodka glass lying on the floor. When he left the room, she picked his phone and pressed redial button to call Darrain. He replied that he had to come but now he cannot come and he would talk to her the next day. He also asked her to stay and take care of the accused as he had a performance on the next day. He also asked her to give the accused water and put him to sleep. She put the phone down on the diwan. The accused came back in the room. He was crying very hard. She was making jokes. She rubbed his head as she was feeling very much maternal to him. He told her that she is a good woman and he is like Budha incarnate. She thought that he was joking as she had been joking too. He then kissed her. She said 'no' and pushed him away. He then tried kissing her again and said "I want to suck you"

but she said 'no'. He started putting his hand up her dress and pulling down her underwear from one side. She was trying to pull her underwear up from the other side. He then held her arms FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 17/161 and pinned her arms and body on the diwan. She said 'no' and struggled to push him away but he was stronger than her. She did not understand how he could be that much stronger. She was very scared. She then thought two things. First thing she thought that she had seen a clip of documentary of Nirbhaya case where the rapist had said, 'if she(victim) did not fight, she would still be alive'. She then thought that she was getting out of this and going to survive, but he forced oral sex on her (he took his tongue and licked her genitals and vagina). She faked an orgasm because she wanted to end it but soon after he said that he wants to do it again. Thereafter, the door bell rang and he got up to get the door to answer the door bell. She was able to pull her underwear up. She went from the living room towards the kitchen and saw Ashish and another man (his brother namely Mashood @ Roomi) whom she did not know. He was crying again. Those two men were comforting him. She walked back to her seat in the living room. She then called MERU cab. She went towards the door and signaled Ashish Singh. She told Ashish that she was leaving but Ashish asked her to stay for five more minutes saying that if Anusha ( his wife) would not return, FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 18/161 someone would need to feed him. She then suggested Ashish to order pizza for him. She went back to the seat. She waited for her MERU cab. There were several calls between her and the MERU cab as the cab driver was having problem to find the house. He finally refused to come there. At this point, she was going to get an auto but Ashish told her that it is too dangerous for a woman to get auto at night but she just wanted to leave. Ashish then told her that he would call a cab for her. Around that time, she started texting Danish Hussain through WhatsApp from her mobile. His wife Anusha came home. Accused came in the living room and told her that she had to leave. She wanted to talk to someone who knew both her and the accused. She texted Danish Hussaini through whatsapp and told him that the accused was a mess; she was invited for a wedding; accused was drunk; Anusha had left and has just come back; she wanted to get out of there; she was having problem in getting a cab; and something has happened and she wants to talk to him ( Danish) as soon as she gets out of his house; Danish told her to just leave and get an auto; she would talk to him once she gets into a car. She stated that Ashish called a cab which came after FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 19/161 about 20 minutes. She after getting into the cab, called Danish immediately on the mobile and told that accused had forced oral sex on her. She was very upset. Danish asked her if she said 'no', which she replied 'yes, of course' and then she asked Danish how the accused could do this to her as he was supposed to be her friend. She talked to Danish for about half an hour. She did not want to go home as her room mates were out of station and she did not want to be alone. Danish also told her that she should not be alone. She then went to Hauz Khas village. She reached there at about 11.30 p.m. and stayed there until around 1.30 am. She then went to her house at Jangpura Extension. She did not want to think as to what had happened with her but she knew that he did wrong with her as he forced her physically. She stated that on 30.03.2015, she sent an email Ex. PW3/C9 to the accused that she knew that he was upset on Saturday night but she had said 'no' to his advances and he had physically forced himself on her. He almost immediately replied the e mail by "my sincerest apologies". She stated that writing this email made her to think what he had done to her. She wanted to ignore it but she could not. She on 01.04.2015 wrote to her FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 20/161 Academic Advisor Allison Busch at Columbia University through email Ex. PW 5/D that she was sexually assaulted and wanted to come home. Unfortunately Allison was away and she did not hear from her until 08.04.2015. She did not know how to handle her pain. She was also in contact with her mother, sisters and friends in USA. They were supporting her. She wanted to go home. They also wanted her to come home too but she wanted to hear from Allison since research was her life and for that purpose, she had come to India. Further she was not sure if she would come back again after what had happened to her. She tried to continue her research but could not nor she could forget or get over what the accused did to her. On 08.04.2015, she received an email from Allison Ex. PW3/C

15. By that time she had decided to go home to get support which she needed. On 12.04.2015, she again sent an email Ex. PW 3/C10 to the accused telling how he has affected her life and the life of her family making him responsible. On 12.04.2015, she received an email Ex. PW 3/C11 from his wife Anusha who conveyed her that she (his wife) has checked his emails because he was in rehabilitation. His wife apologized for what had happened to her FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 21/161 (prosecutrix) and said that he has bipolar disorder. She replied to her email Ex. PW3/C 12 asking his wife not to blame his bipolar disorder for his sexual assault on her and told that rape and sexual assault have to do with power. She then left India on 14.04.2015. On 15.04.2015, she received another email of his wife that she (prosecutrix) has misunderstood her (his wife). She then went to New York to be with her friends and family as she needed their support. She started to see a counselor at Columbia University. She was very much traumatized from what the accused had done to her. By late April, she decided to file a report in the department at Columbia University of gender based misconduct. She wrote about her sexual assault. At that point of time, she knew that she would return to India to file a complaint against the accused and continue with her research. She wrote to the Head of Fulbright Fellowship Mr. Adam Grotski through email and explained that she was sexually assaulted, left India and wanted to return to India to file a complaint and continue with her work but Mr. Adam advised her to stay in America because her research visa was expiring on 11.05.2015. He also told her that he would work it out with the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 22/161 Delhi University where she was affiliated to get her research visa extended, but by the end of May, 2015, she did not get the relevant papers from Delhi University to get her research visa extended, through whole of May she had conversations through email with Fulbright Fellowship concerning her research visa. In the beginning of June 2015, she decided to come to India on a 30 days tourist visa specially for the purpose of filing complaint against the accused. She came in India on 06.06.2015. She did not know the procedure for lodging complaint in India. She wanted to contact some lawyer but there were summer vacations in the court. She called some lawyers but they did not take her case since they knew the accused. Since her tourist visa was going to expire, she herself decided to go to the Police Station and lodge the complaint. She took her friend Jacklyn as her support as she was feeling incredibly scared to approach the police. She went to the Police Station New Friends Colony on 19.06.2015 and gave her complaint Ex. PW 5/A to a lady police officer. At the time of writing the complaint, she was crying. After writing the complaint, she read it and realized that she omitted to write what exactly had happened with her, so she FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 23/161 added the portion C to C "he forced oral sex on me" in her complaint by appending her initials. She was given a copy of FIR Ex.PW1/A. She was taken to AIIMS for her medical examination with her friend Jacklyn but she refused to undergo her gynecological examination. She appended endorsement on the MLC Ex.AD/M. On 20.06.2015, she was taken to Saket Court for recording her statement u/s 164 Cr.P.C. Ex.PW5/B. On 22.06.2015, she handed over copy of email sent by her to Allison and copy of her affiliation papers with Delhi University. She also gave the copy of passport to the police. On 07.07.2015, she handed over her laptop, Iphone and dress worn at the time of incident and her selfie with the cat of the accused on the day of incident. She also gave an application mentioning the details of emails exchanged between her, the accused and his wife. She stated that she had taken the print out of the screen shots from her mobile phone which she handed over to the police. She also handed over the copy of the conversation between her and Ms Mathangi Krishnamurthy during the period from 31.03.2015 to 01.04.2015 Ex. PW3/C17 to C20. She also proved the print of the emails referred by her in her examination Ex. PW 3/C9 to C16.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 24/161 She identified her laptop MO1. She also opened her emails from the laptop Ex. PW3/C9 sent by her to the accused on 30.03.2015 at 10.47 a.m and the reply of the accused at 10.52 a.m. She also opened the emails Ex. PW 3/C14 to C16 sent by her to her Academic Advisor Allison on 01.04.2015 at 1:19:09 a.m (EDT) and the reply of Allison on 08.04.2015 at 11.28 p.m. She also opened the emails Ex. PW 3/C9C10 sent by her to the accused on 12.04.2015 at 12.59 p.m, emails sent by Ms Anusha Rizvi on 12.04.2015 at 8.43 p.m Ex. PW 3/C11, her reply to the email to Anusha Rizvi Ex. PW 3/C11 on 13.04.2015 at 7.21 p.m and the email sent by Anusha Rizvi on 15.04.2015 at 10.19 a.m Ex. PW 3/C13. She also opened the email dated 27.04.2015 at 10.06 p.m (EDT) which she had sent to Adam Grotski mentioning that she was sexually assaulted and left India and the email dated 28.06.2015 at 5.40 a.m Ex. PW 3/C17 with annexure Ex. PW 3/C18C20 i.e whatsapp conversation which she had with Mathangi Krishnamurthy during the period from 31.03.2015 to 01.04.2015. She also identified her mobile phone Ex. MO2. When she was asked to locate the whatsapp conversation which she had with Danish Hussaini, she after opening the mobile stated FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 25/161 that the conversation is not in her mobile. She had inadvertently deleted the said conversation however, she had taken the screenshots mark PX of the same before deleting. She identified her dress Ex. MO3 which she was wearing at the time of incident.

On being crossexamined, she stated that the mobile Ex. MO2 was the only mobile she was using in March, 2015. She stated that the accused had called her at around 4.00 p.m on 28.03.2015 which fact she had stated in her complaint Ex. PW 5/A and her statement Ex. PW 5/B. Ld counsel demonstrated from the CDR Ex. AD/D1 to D14 where there was no incoming/outgoing call from her mobile from 14:12:54 to 18:42:01. She however denied that the accused never made any call to her on 28.03.2015. She stated that she had booked the MERU Cab for going to the house of the accused through the App on her mobile phone but she could not recall if she got email confirmation/SMS from MERU Cab regarding her booking. She then said that MERU Cab might have sent SMS to confirm the booking. She stated that she had seen the accused in an intoxicated condition but she was not alarmed since she had seen him in such a condition prior FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 26/161 to the said incident and further she did not know if Anusha was at home. She admitted that she did not state in her complaint Ex. PW 5/A and statement Ex. PW 5/B about the conversation "then Ashish left, I started asking accused more about what is wrong, why he is crying and he answered to me mentioning about his mother and wife, he was saying that he is very upset with them". She stated that after the accused called Darrain and left the room, she did not answer any incoming call on his mobile through which she later dialed Darrain. She admitted that she did not state in her complaint Ex. PW 5/A "I ended the call with Darrain. Accused came back in the room, he was crying very hard". She admitted that in her complaint Ex. PW 5/A, she has stated " Mahmood came back and we were talking for a while". She stated that the conversation which she had with the accused at that time for a few minutes was that she asked the accused what was wrong with him and he said to her that he had a fight with his mother and wife. The jokes which she later exchanged with him related to how he was dramatic and how she was like her mother. She stated that she did not communicate her maternal feeling towards the accused through FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 27/161 the words. She by gesture put her hand on his head. She explained that in the complaint Ex. PW 5/A and the statement Ex. PW 5/B, she meant by the words "MERU left me" it never came. She stated that she did not ask Ashish or anyone else to speak to the driver and instruct him how to reach the house. She stated that she did not ask because Ashish had already asked her to stay and she was trying to leave as soon as possible. She admitted that she had sent a text message to the accused "I can never remember your address". She stated that there was no reply to this message so she must have called him later on. She admitted that she did not receive any reply to her message sent on 28.03.2015 at 8.08 p.m "just booked cab". She admitted that on 10.01.2015 she had sent a text message to the accused and his response was "sorry, new phone, who is this". She stated that her birthday party was on the night of 14.03.2015. She denied that Darrain never told her that accused was intoxicated and he would not be able to make to the party. She admitted that she had several conversations with the MERU cab driver for about 20 minutes. She stated that she cannot recall the time when she received the first call from the MERU cab. She FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 28/161 denied that within 2 or 3 minutes of terminating of her conversation with Darrain, she started operating the MERU app. She stated that after terminating her conversation with Darrain, accused returned to the room and she talked to him a bit. He was returning to the room when she put down the phone after talking with Darrain. She stated that she had one conversation with Darrain which was the last conversation through the phone of the accused before the accused sexually assaulted her. She stated that the first phone call was made by the accused to Darrain. He was on speaker phone. The accused had asked Darrain, if he would be coming. She did not recall about the second call but stated that it was possible, She stated that the third call was her call to Darrain from the phone of the accused where she had asked Darrain to come. She was confronted with the CDR Ex. AD/D1 to D14 of her mobile 7042132004 about the two entries at Point A and B which signified a sender DMMERUCB received at 22:13:10 and 22:13:12. She stated that it may be possible that the call at which she spoke to Darrain terminated at 22:09. She stated that she did not have the number of Darrain.

She denied that the period between the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 29/161 termination of call with Darrain at Mark X on the CDR and the booking of the MERU cab was so short that no sexual assault as alleged could happen. She stated that the accused sexually assaulted her and forced oral sex on her holding her hands back.

She stated that she did not know the person who came with Ashish and she cannot say that he was the brother of the accused since she never met him. She denied that Ashish and the other person were present in the house at the time the calls to Darrain Shahidi were made. She stated that on 22.06.2015 her supplementary statement Ex. PW 5/DB was recorded when she handed over some papers to the IO and the supplementary statement does not contain any reference with regard to taking of screenshots qua whatsapp conversation between her and Danish. She stated that she had shown the screenshots to the police who told her that they would take it from her phone later. She also admitted that on 03.07.2015 her supplementary statement Ex. PW 5/DE was recorded and the said statement also does not contain any reference with regard to taking of above screenshots and even it does not contain any reference with regard to deletion of said FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 30/161 whatsapp conversation nor there is any reference in her application Ex. PW 3/C1 and C2 with regard to deletion of whatsapp conversation or handing over the screenshots of the same. She stated that she accidently erased them. She denied that the deletion of the whatsapp conversation between her and Danish were deliberate. She stated that she deleted the messages sometime on 3rd or 4th July 2015. She stated that her Fulbright Scholarship was for 12 months from June, 2014 and before leaving India she was required to seek permission from the Authorities sponsoring the scholarship. She stated that she does not recall if she visited New York on 19.12.2014, 03.02.2015, 16/17.04.2015 and 19.05.2015. She admitted that she had visited Lebanon between 10th to 17th May,2015 to meet her relatives. She stated that she did not apply extension of her Fulbright grants. She stated that she is not sure if extension of research visa in India is contingent upon an extension of the Fulbright Fellowship or on a recommendation from Academic Supervisor. She stated that for getting extension of research visa, she was pursuing through Fulbright since April, 2015 but it never came through till July, 2015. She denied that she had FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 31/161 given a book to the accused as gift at Yeti Restaurant, Hauz Khas who in turn had given to Radhika in her presence due to which she got upset. She denied that when she went to the house of the accused in February, 2015, she got heavily drunk so the accused and his wife had asked her to stay at night in their house. She stated that Sonal Shah was the Editor of Caravan magazine and Ramalaxmi was journalist with the Washington Post and she knew them. She also admitted that USIEF has an office and staff in Delhi and Adam Grotski was posted in Delhi in MarchApril, 2015. She denied that on the evening of 28.03.2015, she was introduced with the brother of the accused, she had cordial conversation with every one before she left and she also saw the wife of the accused on that day. She stated that when she entered the house of the accused, she gave him friendly hug and when she left, she did not do since he had betrayed her trust. She stated that since he had sexually assaulted her, there was no question of giving him a hug. She stated that there were communications via emails and whatsapp between her and Danish Hussaini after 28.03.2015 however, she was not sure if there FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 32/161 was any telephonic conversation between her and Danish after 28.03.2015. She stated that before departing to US in April 2015, she had visited Rajasthan. She explained that she was trying to forget what the accused did with her and wanted to concentrate. She stated that she knew that accused was alcoholic but she never found him misbehaving due to his alcohol before the incident. She denied that Radhika and Darrain never told her that the accused is alcoholic. She denied that when she called the accused in the morning of 28.03.2015, he told her that he would be busy with his work but she told him that she would drop in for a while. She denied that her versions of the events of 28.03.2015 are the progressive exaggerations from the whatsapp messages to Danish Hussaini, email of 30.03.2015 and the whatsapp chats of 31.03.2015 with Mathangi. She denied that in the email of 12.04.2015, she set up an altogether different case. She denied that sometime on 30.03.2015, the accused called her and told her that he did not appreciate what he saw as an attempt on her part to insinuate a closeness with him which he did not share and wished for the association to end. She denied that she had shown tendency to imagine things in retrospect FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 33/161 or that the accused was not incredibly drunk and hysterically crying at any time during the evening of 28.03.2015. She stated that she was not aware if MERU also sends SMS when booking is cancelled or when a customer reaches the destination. She denied that her trip to US in April, 2015 was preplanned and she stayed there until after 19.05.2015 on which date, the eviction suit against her was dismissed. She denied that her allegations of forced oral sex, pinning down of her arms and sexual assault by the accused are false. She stated that she is not aware if US Embassy gives consular services to American citizens who are victims of crime and sexual assault in India including emergency services. She stated that when she spoke to American Embassy, they specifically told her that they are unable to help her as it is a private matter. She was not aware of the advisories rendered by the American Embassy.

PW 6 HC Sukhvinder proved the entries Ex. PW6/A in Register No. 19 regarding deposit of exhibits in the Malkhana. He sent the exhibits to FSL Rohini on 14.07.2015 and 21.08.2015 through Ct. Ajay Kumar and Ct. Ravinder vide RC Ex.PW6/B and Ex.PW6/C. He stated that the exhibits during his possession were not FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 34/161 tampered with.

PW7 Ct Ravindra Rana deposited the laptop and the mobile phone alongwith two blank hard disks of 500 GB on 21.08.2015 with the FSL Rohini vide Road Certificate Ex. PW6/C. He stated that so long as the exhibits remained in his possession, no one tampered with the same. PW8 Ms Anu Aggarwal, Ld. MM recorded the statement of prosecutrix u/s 164 CrPC. Ex. PW 5/B on 20.06.2015. She stated that before recording the statement, she had ascertained the voluntariness of the prosecutrix.

PW9 Ct Dharamvir collected the exhibits and the result from the FSL, Rohini on 18.09.2015. PW 10 Murtaza Danish Hussaini has stated that he knows the accused for about 10 years. They were friends and collaborators on the ancient art form of story telling Dastangoi since 2005. He knows the prosecutrix. He had met her in June 2014. She had seen their performances. She was a Hindu Scholar from Columbia University. She was doing research on Gorakhpur and its association with Hindu religion. He found the accused, the best person to introduce to her as he was Historian and from Gorakhpur. He introduced her with the accused in June 2014.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 35/161 He stated that on the evening of March 28, 2015, he was in Dehradun. At about 10:30 p.m., he started receiving Whatsapp messages on his mobile phone no. 9873078449 from the prosecutrix where she indicated that she was in some sort of sexual assault situation from the accused. He asked her to leave immediately. She told him that she was waiting for the cab. Short while later, she called him from the cab that she has experienced something which she never experienced before; the accused had forced himself upon her. He asked her why she did not say 'no'. She said, initially she did but the accused forced himself upon her. He then asked what she meant by force himself upon her, she replied that the accused pinned her arms down and forced oral sex on her. She froze and was scared and did not resist. In her head she was thinking that he was so drunk and there cannot be any intercourse possible, she faked the orgasm so that her ordeal could end sooner. He asked why she did not leave immediately. She said, the bell rang and his friends came in. She was trying to arrange a cab but his friend said that it is not safe and they would arrange one for her.

He stated that on hearing this incident, he FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 36/161 was under shock. He could not say much except that she should not be alone and should be with her friends and when she can think better, she should do what was best in her interest. He stated that she was crying at that time. He stated that he met the police for the first time when he was called in the police station.

On being crossexamined, he stated that he knows the parents, brothers and inlaws of the accused. He had talked to the prosecutrix on phone after 28.03.2015 but he does not remember the date. He also went with the accused for holidays with his friends from Oxford. He stated that Shahid Amin an academician and Dr. Amrit Satwik, are their common friends.

He stated that he got to know of the complaint after it was lodged in the police station. He did not hand over the Whatsapp messages exchanged between him and the prosecutrix to the police nor the police asked him. He then volunteered that he had deleted the said messages in April 2015. He stated that in the first fortnight of June, 2015, the prosecutrix never asked him neither in June or July 2015 whether he still had those whatsapp messages in his mobile. He stated that the prosecutrix had FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 37/161 asked him about a criminal lawyer but since he did not know any criminal lawyer, he did not help her. He stated that after 28.03.2015, the prosecutrix had forwarded him the emails exchanged between her (prosecutrix) and the accused and his wife but he did not reply the said emails nor wrote any email on this subject. He stated that after 28.03.2015, he and the prosecutrix had exchanged Whatsapp messages where she had expressed trauma but he does not recall whether the prosecutrix had shared with him that she had deleted the Whatsapp messages which she exchanged with him on 28.03.2015. He admitted that after 28.03.2015, he had called the prosecutrix on her mobile on 12.04.2015. He stated that he had read the articles written by the accused published in Indian Express on 03.04.2015 Ex.PW10/BA at page 11. He stated that he could not recall if on 11.06.2015 at 12:57 a.m., he had received a call from the prosecutrix which lasted for 43 minutes (2595 seconds). He could not ascertain whether the number 9643899194 belonged to the prosecutrix. He could not answer about a call made on 11.06.2015 at 1:40 a.m. from the number 9643899194 which was of 1336 seconds. He stated that he did not save the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 38/161 number of the prosecutrix since in July 2015, his software crashed and he lost the data. He admitted that on 14.06.2015 and 20.06.2015, he had talked twice on the above number. He also admitted that he had a conversation with the prosecutrix on 20.06.2015. He denied that the prosecutrix had discussed with him about her complaint before and after filing the complaint. He stated that the conversation which she had prior to filing of complaint was about her inability to get a lawyer.

He stated that prior to the conversation with the prosecutrix, the wife of the accused had called him as she wanted him to intervene on behalf of the accused and speak to the prosecutrix. He stated that he had called the prosecutrix on which she became very angry and said that after the trauma she has gone through, she would not withdraw her complaint and then disconnected the phone. He stated that later she called him and reiterated which he conveyed to the wife of the accused and the accused on the next morning. He denied that there was no call from the wife of the accused nor of the accused prior to the filing of the complaint. He stated that when the wife of the accused sent two SMS on 20.06.2015 at 1:45 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 39/161 a.m. i.e. need to speak urgently, very urgent and at 3:30 a.m. Dan whatever we need to do will need to be done now, he was sleeping. When he realized that his phone was buzzing, there were SMSs and missed calls from the accused's wife and Darrain Shahidi but he does not recall if he took their calls or called them back but he recalls that they had asked him to intervene and ask the prosecutrix to withdraw the complaint and thereafter he called the prosecutrix. He admitted that after the complaint, he had received lot of phone calls from common friends. He denied that there was no suggestion that he should intervene in the matter. He denied that he has played a partisan role in this incident. He was confronted with the Whatsapp messages Mark PX exchanged on 28.03.2015 which he admitted to have exchanged with the prosecutrix. He stated that the Whatsapp messages do not mention of sexual assault. He stated that he did not verify about the two guys which were reflected in the message on 28.03.2015 at 10:45 p.m. however, he got to know their identity i.e. Ashish Singh and Mashood Farooqui. He stated that he does not recall whether in March, April or May or at any point of time, he had told Amrish Satwik or Shahid Amin what the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 40/161 prosecutrix had told him. He denied that he was unusually close to the prosecutrix.

He stated that the fatherinlaw of the accused passed away in May 2015. He was a Hindi Scholar. He stated that he does not recall if he had sent congratulatory message to the accused after seeing his interview by Ravish on NDTV on 03.04.2015 but when he was confronted with the message dated 04.04.2015 at 12:45 p.m, he admitted that he had sent the said message. He stated that he had met the accused in the house of Amin Rashid in the evening on 14.06.2015 in Mumbai but he denied that until 12.04.2015 the prosecutrix did not tell him anything about the sexual assault and because of that there was no telephonic call between him and the prosecutrix from 28.03.2015 to 22.04.2015 and he has deposed on the basis of email sent by the prosecutrix to him on 12.04.2015 and her subsequent communication with him. He stated that there were two messages, one from 9899973769 and other from 9818846416 and he had called back on Darrain's number who after speaking handed over the phone to Anusha where both of them had asked him to be in touch with the prosecutrix and intervene so that she does not press the charges.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 41/161 PW 11 Jacklyn Michael was a PHD scholar and Researcher of Dastangoi. She had met the prosecutrix in July 2012 in Jaipur through Daniel. She had met the accused in October 2012 in her University where he had come to give his performance on 'Dastangoi'. She stated that from 29.03.2015 to 04.04.2015, she was out of Delhi. She returned on 05.04.2015 from Agra. She met the prosecutrix on 05.04.2015 who told her that on 28.03.2015 the accused had called her in his house for going to a wedding; when she went there, he was drunk; and when they were in the room together, accused forced oral sex on her. She stated that the prosecutrix left Delhi in mid April since she was very upset and distraught about what had happened. The prosecutrix came back on 06.06.2015. She picked the prosecutrix from the Airport and on the way, she told her that she has come to Delhi to file her complaint about the assault. She stated that on 19.06.2015, she accompanied the prosecutrix to the police station where she filed the written complaint.

On being crossexamined, she stated that she had access to her email in Agra and Jaipur. She did not receive any call from the prosecutrix during the period from 28.03.2015 to FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 42/161 04.04.2015. In April 2015, she knew that there was a helpline of Delhi Police but she did not know the exact number but she knew that it was 100 number. She admitted that she had put a post on the Facebook on 02.06.2015 Ex. PW 11/A which refers women helpline of Delhi Police "call 1091 women helpline" and the prosecutrix had liked the post. She stated that she and the prosecutrix were not room mates but she had stayed with her for some nights.

PW 12 Ashish Singh was the Journalist working with Aaj Tak channel. He stated that the accused is his childhood friend. They used to live in the same town at Gorakhpur. On 28.03.2015 at about 8:30 / 9 p.m., he had gone to the house of the accused. Ankit and Poonam were having a discussion with the accused. They left after 5 - 10 minutes.

He stated that when he and the accused were talking, the door bell rang. He opened the door and saw a foreign lady i.e. the prosecutrix. She came in. The accused got her introduced to him that she was doing some research. The accused asked her to sit in the study room since he wanted to talk to him. After sometime, she joined them. Thereafter, he went downstairs to bring something. After 20 25 minutes when he FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 43/161 returned with the brother of the accused namely Roomi (Mashood), he found the accused and the prosecutrix sitting in the living room. The accused was writing something. They sat there for sometime and had a talk. The prosecutrix wanted to go. The accused called a taxi and she left in a taxi.

On being crossexamined, he stated his mobile number was 9999578653. He stated that the accused knew that Roomi was coming there. He stated that after reaching there, he talked with the accused about his show of Dastangoi, Article on Indian Express and on the script of his next show and further in a day or two, his show was to be recorded for NDTV.

He stated that he left the house of the accused at about 9:30 p.m. He returned after about 10 /15 minutes or 20 / 25 but before 10 p.m. He does not remember if Roomi had texted or called from his mobile when he and Roomi were in the house of the accused. He, however, stated that he had used his mobile after he came with Roomi in the house of the accused. He had telephoned his common friend Radhika at about 10:15 p.m. He knew that Darrain was expected there. They all were to come at around 9 / 9:30 p.m. FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 44/161 He stated that the accused had talked to someone after his return with Roomi in his house. They came from the door, which they had left unlocked. He stated that he had sent a text message to his wife after he came with Roomi in the house of the accused. After checking his mobile, he stated that the mobile contains the messages of 28.03.2015 at 10:02 p.m. "Back to Mahmood's place with Roomi, will take sometime" response from his wife "ok ..., take ur time ... don't wry" and his reply "ok". He stated that he had a talk with the prosecutrix on Gorakhpur after his return. She had also taken his number.

He stated that wife of the accused Anusha had gone to her parent's house. She was expected to bring food. He stated that the prosecutrix was talking from some phone but he does not remember if she was talking from the mobile of the accused. He stated that Anusha returned before the prosecutrix left the house of the accused, she (prosecutrix) hugged the accused and said "bye to them". He went downstairs to see her off. She also called him after reaching her destination from the number 7042132004 at 23:25:46 hours. He stated that there was something in the glass of the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 45/161 prosecutrix but he can not say what was in the glass as it contained a clear liquid. He stated that he left the house of the accused at about 11:30 / 12 night.

On being reexamined on 22.02.2016, he admitted that when he returned to the house of the accused on 28.03.2015, the prosecutrix was sitting quietly in the room but he denied that after his return, she told him that she wanted to leave. He denied that the prosecutrix did not talk to him on Gorakhpur or that she did not hug the accused while leaving the house nor said bye to any of them. He denied that the voluntary part of his statement in crossexamination that he came there before 10 p.m. is false or that he deliberately introduced this fact to help the accused being his close friend. He denied that the calls / text messages which he made from his mobile phone between 10 p.m. to 10:15 p.m. were not from the house of the accused or that he did not send any text messages to his wife from the house of the accused between 10 p.m. to 10:15 p.m. or that he tampered his mobile phone / doctored the SMS sent to his wife at 10:02 p.m. to help the accused. He stated that he did not inform the IO at any time about the SMS to his wife. He denied that he did not hand over FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 46/161 his mobile phone to the IO since he had tampered with it and doctored the SMS and it would have been detected in the forensic examination. He denied that neither he nor Roomi were present in the house of the accused when the accused and the prosecutrix spoke to Darrain between 10:00 to 10:09 p.m. He denied that he followed the trial and the evidence and deposed to fill up the gaps in the defence put forward by the accused. He denied that between 22:32:02 to 22:43:56 Anusha was not present in the house or that he shaped his evidence after closely examining the CDRs of himself, prosecutrix, Darrain, Roomi and the accused. He denied that when he returned to the house of the accused, he had rung the door bell.

On being crossexamined by Ld. Defence Counsel, he stated that the mobile number of his wife was 9811996785 at that time. Anusha had come within moments of his sending the first message (10:32 p.m.) to her.

PW 13 Dr. Dhruv Sharma was the Assistant Director (Biology) FSL Rohini. He examined the sealed parcels on 14.07.2015 but could not generate the DNA profile. He proved his report Ex.PW13/A. PW 14 HC Suresh Sharma was present when FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 47/161 the accused was interrogated and his disclosure statement Ex.PW14/A was recorded. He stated that no recovery could be effected at the instance of the accused.

PW 15 Ct Santosh collected the exhibits from the FSL and handed over to the MHC(M). He stated that the exhibits during his possession were not tampered with.

PW 16 Ct. Ajay Kumar deposited the exhibits in the FSL Rohini on 14.07.2015. He stated that the exhibits during his possession were not tampered with.

PW 17 WSI Seema on entrustment of investigation, received the documents, one photograph, laptop, mobile phone, single piece cloth which the prosecutrix was wearing at the time of incident, from the prosecutrix on 07.07.2015 and prepared a seizure memo Ex.PW3/A. On 14.07.2015 and 21.08.2015, she sent the exhibits to the FSL. She collected the CDR and FSL results. She proved the mobile phone, laptop, photograph and the dress of the prosecutrix Ex.MO2, MO1, Ex.PW3/B and MO3 respectively. She stated that she did not examine the laptop and the mobile phone before sending to the FSL. The prosecutrix had come of her own on 07.07.2015. She stated that the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 48/161 prosecutrix had shown her the messages before handing over the mobile phone to her. She thereafter asked her to switch off the mobile. She stated that the prosecutrix had given her the hard copy of the Whatsapp text messages as well as emails Ex.PW3/C1 to Ex.PW3/C20 and except this, she did not give her any other hard copy or print out. She stated that she did not investigate on the aspect as to when the prosecutrix went abroad and when and through whom she booked her flight from India to USA in April 2015. She stated that she did not conduct any investigation with regard to whether any application for research visa made by the prosecutrix was pending or disposed off by the Government of India in between April and July 2015. She stated that she did not personally analyze the CDRs except the location.

PW18 W/SI Shanti on 19.06.2015 on receipt of instructions from the ACP went to the police station New Friends Colony where she met the prosecutrix and her friend Jacklyn. She made endorsement on the complaint Ex.PW5/A and got the case registered. She sent the prosecutrix to AIIMS for her medical examination and got the prosecutrix counseled. She collected the papers i.e. emails dated 30.03.2015 Ex.PW3/9 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 49/161 and emails dated 12.04.2015 Ex.PW3/C vide seizure memo Ex.PW18/B. On 20.06.2015, she got the statement of the prosecutrix recorded u/s 164 Cr.P.C. She arrested the accused and sent him to AIIMS for his medical examination. On 22.06.2015, she collected the documents Ex.PW5/D, Ex.PW5/E and Ex.PW5/F from the prosecutrix vide memo Ex.PW5/C. On 24.06.2015, she collected the documents Ex.AD/G1 to Ex.AD/G8 and Ex.AD/H1 to Ex. AD/H12 from the landlord of the accused vide memo Ex.PW18/D. On being crossexamined, she stated that the Addl. SHO Ram Niwas had made inquiry from the accused on 19.06.2015. On 22.06.2015, the prosecutrix had shown her some prints from the laptop but she did not take those into possession since she wanted to take those with the laptop and mobile. She stated that the prosecutrix did not hand over the mobile and the laptop till the investigation remained with her. She stated that she did not ask Danish to produce the documents nor she made investigation from the cab driver / cab agency regarding the cab taken by the prosecutrix on 28.03.2015. She stated that she did not make any inquiry as to who came in the house of the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 50/161 accused from 9 p.m. to 11 p.m. or who were present in the house of the accused during that period. She stated that she did not examine the laptop and the mobile of the prosecutrix nor obtained the CDRs of the mobile phones of the prosecutrix and the accused.

PW 19 Dr Narayan Waghmare, Assistant Director, FSL examined the laptop make Apple Ex. HDD1 (MO1) and the mobile phone make Apple Ex MP1 (MO2) on 21.08.2015. He retrieved all the data from Ex.HDD1 and stored in the Hard Disk Drive vide annexure SHDD1. He also analyzed the mobile phone and retrieved the data in the hard disk SHDD1. He proved the report Ex.PW19/A. PW 20 Anuj Pawra was the owner of Moonshine Cafe and Bar at Hauz Khas. He stated that the prosecutrix used to stay at Hauz Khas village. She was his regular customer. He had met her in September / October 2014. On 28.03.2015, his restaurant had completed one year. He had organized a big event and called all the customers. He had also spoken to the prosecutrix 3 - 4 times from his number 9873569169.

On being crossexamined with the call details Ex. AD/D1 to Ex.AD/D14 and the entry FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 51/161 PX i.e. call on 28.03.2015 at 22:11:22 from the mobile number 7042132004 (prosecutrix), he stated that he wanted to invite the prosecutrix in the event on that day but she refused saying that she has to go for a dinner at her friend's house, he had attended the call PX, he kept on saying 'Hello Hello......' however no response came from the other side. It was blank. He stated that on 28.03.2015 at about 11:30 p.m., the prosecutrix came in his restaurant and when he asked her about the call she said she never called him.

STATEMENT OF ACCUSED

12. After the prosecution evidence, statement of the accused under section 313 CrPC was recorded. He admitted that the prosecutrix had contacted him and given references of Danish and other common friends from Columbia. She had told him that she has been coming to India since 2002 and completing her research but she wanted contacts from Gorakhpur. He gave her the contacts of several persons in and from Gorakhpur. He also admitted that the prosecutrix had communicated with him on and off by sending text messages and met him in Nagaland Cafe with her friend who was doing PHD from Columbia University. He stated that in January 2015, she had come to his house for dinner. She had sent him a text message. He also admitted that he was going to Gorakhpur with his family and friend to perform and he might have asked the prosecutrix to come along but she did not come. He FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 52/161 stated that the prosecutrix wanted to give him a book on Baba Bulley Shah's poetry. Darrain and he were going to meet a common friend Radhika who lived in the area so they dropped in at Hauz Khas to meet her. He denied that he was drunk but he admitted that at Yeti Restaurant, they all had lunch and beer. He stated that they all had tea in Radhika's house and thereafter, they went to Nagaland Kitchen, but he denied that Radhika travelled in another car. He stated that the prosecutrix, Radhika and he were on the rear seat and Darrain and driver were on the front seat. He denied that he kissed the prosecutrix in the car. He stated that at Radhika's house and in the car, the prosecutrix was trying to show in front of his friend that she and he were intimate but he was uncomfortable with that. He admitted that he left as soon as they reached Nagaland Kitchen. He stated that he was feeling a little uncomfortable but he did not want to misjudge or create a scene so he made an excuse and left. He stated that Radhika had shown interest in the book which he gave to Radhika in the presence of the prosecutrix. He admitted that the prosecutrix again came to his house for dinner in mid February 2015. He stated that the prosecutrix wanted to meet his fatherinlaw who was scholar of medieval Hindi poetry to consult about a manuscript, so, he asked her to come home. He denied that he kissed the prosecutrix at any time in that evening. He stated that in fact the prosecutrix was quiet intoxicated. He and his wife asked her to sleep in their house at that night but she called a taxi and left. He stated that the prosecutrix got a bottle of Vodka for which he had thanked her. He admitted that the prosecutrix had invited him and Darrain in her FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 53/161 birthday party but since they had series of shows at IIC Delhi, he called and wished her and apologized that he would not be able to come. He stated that Darrain did not speak to her in his presence. He denied that he was intoxicated, so, he could not go. He stated that on the next day and the day after on two consecutive days, the prosecutrix sent messages inviting him to have drinks at her house and at bar but on both the occasions, he declined. He admitted that the prosecutrix had called him on the morning of 28.03.2015 and said that she wanted to meet him. He told her that he has a very busy day and rehearsals in the evening but if she likes, she is welcome to drop in and she said that she will come for a bit. He denied that he spoke to her in the afternoon and told her anything about the plan changing. He stated that he had already invited people in his house. His wife was attending her father who was not keeping well. He had no plan to go to any wedding. He stated that the prosecutrix called him at around 7 p.m. and asked the directions of his house. By that time, he had not reached his house as he was busy with the meetings all day. He again told her that he would be busy. He stated that he did not see the text messages nor replied to them because he was in the rehearsals at that time. He admitted that Ankit and Poonam had left his house just before the prosecutrix came. He also admitted that Ashish opened the door for the prosecutrix and she joined them in the living room where they were sitting. He denied that he was crying or he was intoxicated. He stated that in fact he was in the middle of a serious discussions with Ashish. He stated that it was a very busy week for him because, he had ten years FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 54/161 celebrations of Dastangoi coming up. He had to shoot a live show with NDTV. He had to write an article for Indian Express and conduct a workshop with ABP News. That evening, he was finalizing the script of the show and finishing a translation of 18 th Century Barahmasa for historian Shahid Amin which he had to send by the next morning. He had called Ashish, Darrain and his brother to have a discussion about their preparations for these events. He denied that Ashish was comforting him. He stated that they were discussing the ideas for the NDTV show with Ravish Kumar. He admitted that he had asked the prosecutrix to wait in another room as he was in discussion with Ashish. He admitted that the prosecutrix came in the living room after sometime, she joined Ashish and him. He stated that he had no reason to be upset. He denied that he was crying at that time. He stated that in fact the prosecutrix and Ashish exchanged greetings and some words about Gorakhpur. He admitted that the prosecutrix had asked him if she could have a drink but he denied that she made those drinks. He stated that he had made the drinks for her and for himself and it was his first drink which he had on that day. He denied that he had asked Ashish to leave. He stated that Ashish had told him that he had to go downstairs for a few minutes to pick up something. He admitted that he was expecting Darrain any minute. He admitted that Ashish went downstairs to bring something but he stated that during the period Ashish left and came back, he was working on his translation and intermittently speaking to the prosecutrix. Their conversation related to her work and not about his being upset. He denied that he shared anything FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 55/161 about his wife or mother with her. He stated that there may have been some jokes in that vein. He admitted that he spoke to Darrain 2 - 3 times when the prosecutrix was present but all those conversation happened after Ashish had returned with Roomi. He stated that he was waiting for Darrain as they had a show the next day. He stated that their conversation was about making some last minute changes but he denied that the phone was on speaker mode. He stated that his phone was with him and he did not leave the room at any time. He denied that the prosecutrix redialed his number. He stated that during that time, the prosecutrix did speak to Darrain to say a brief hello but he denied that Darrain had asked her to give him water or to take care of him. He stated that there was nothing wrong with him and even otherwise his brother and friend were already there and his wife was expected any time. He denied that he was crying at that time. He stated that they all were in the living room at that time and the phone was with him. He denied having committed oral sex with the prosecutrix. He stated that it is strange that someone who is thinking of Nirbhaya case would stay on in the house as long as she did. He completely denied the incident and stated that Ashish and Roomi were already in the house. He stated that Ashish left his house for about 10 - 15 minutes and he and Roomi came back before he spoke to Darrain. He also denied that Ashish had asked her to wait but he admitted that prosecutrix was on phone and walking in and out of the balcony. He stated that when she asked for a cab, he ordered his local taxi driver who came and took her, so there was no question of Ashish asking her to feed him. He stated that his house was very FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 56/161 easy to find. He stated that Anusha came in the house and said hello to all of them including the prosecutrix in the living room and he never asked the prosecutrix to leave. He stated that he does not know what the prosecutrix texted to Danish and what was his reaction. He stated that the prosecutrix did not seem to be upset when she left. He stated that Danish never mentioned about the conversation between him and the prosecutrix although he remained in touch for the next three months. He had met him a week ago in Bombay before the prosecutrix lodged the complaint and even at that time, he did not mention anything to him. He stated that the prosecutrix left his house at about 10:45 p.m. She called Ashish after she reached her destination. He admitted that the prosecutrix had sent him the email Ex.PW3/C9 on 30.03.2015 and he had replied "my sincerest apologies". He stated that he had written it after reading the first 2 or 3 lines of her email since on that morning, he was constantly on phone with people like Sharmila Tagore, a Pakistani writer Natiq and others regarding the 10 years shows of Dastangoi. He thought that she was upset since he did not pay her attention. He stated that after an hour or so when he got chance to read the email fully for the first time, he was shocked. He thought that it was the product of a disturbed mind because she was attributing imaginary acts to him at the same time saying that she loves him and is attracted to him. He thought of refuting it in writing but felt that it would be better to confront her directly. He called her immediately and confronted her. She had no explanation why she wrote that email. He told her that there had never been any intimacy between them and there FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 57/161 never shall be and he does not want any contact between her and him from that time on. She then said 'fine'. He denied having known the conversation between her and her academic advisor or emails from Allison. He admitted that on 12.04.2015, the prosecutrix had sent an email Ex.PW3/C10 to him but stated that he did not read it because his wife had deleted it from his account. He denied that he was in rehabilitation for alcoholism. He stated that in fact he was advised to go there because he suffered from bipolar disorder and he had a very hectic session. He was advised a period of rest where he had no access to his laptop and very little access to his phone and no smoking and drinking. He stated that it was during that time, the said emails were exchanged. His wife did not tell him about the emails until much later. He stated that his wife feels very strongly about the issue of sexual violence and has written articles on it. She took the position that all such issues must be investigated but she did not discuss it with him. He stated that when he came out of rehab, his fatherinlaw was in the hospital. He went straight there. He passed away on 24.05.2015. He was his spiritual and intellectual Guru. He stated that they all were dealing with this for that whole month so his wife only informed him about the mails sometime in June 2015. He stated that in February 2015, the prosecutrix had told him and his wife that she had to go to New York in April 2015 to attend the court case. He stated that he did not sexually assault her and the report in the Department of Columbia University of gender based misconduct is not the part of the Court record. He denied having knowledge of emails between Adam Grotski and the prosecutrix.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 58/161 He stated that he did not force any oral sex on her nor assaulted her. She lodged the complaint when he tried to avoid her closeness. He stated that he knows Danish since 2006. The prosecutrix had introduced herself to him directly giving reference of Danish and other friends and he does not know since when the prosecutrix and Danish knew each other. He stated that the prosecutrix and Danish falsified the case of sexual assault. He admitted that Jacklyn had been researching on Dastangoi and had visited his house many times since 2012 and she had met and interviewed many performers of Dastangoi including Poonam and Ankit. He stated that he thought about this alleged incident everyday for the last five months. He has met several students from US and has been friendly with most of them. In the case of the prosecutrix, he felt that she was trying to get too close to him which he generally avoided. May be that upset her. When he spoke to her on 30th March, he was very curt in telling her that there will be no future contact between them, may be that angered her. He stated that the email she wrote to him on 30 th was the product of a disturbed mind. He stated that Jacklyn and Danish have repeated what they had been told by the prosecutrix. He stated that Jacklyn and Danish did not raise this issue with his friends or him though they were in touch with him right through April, May and June 2015. He stated that he had sent the translation to Shahid Amin on 29.03.2015 morning at around 10 a.m. on which he was working on 28.03.2015.

DEFENCE EVIDENCE FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 59/161

13. In defence, the accused examined as many as six witnesses.

DW1 Dr. Ambarish Satwik stated that on 03.02.2015, he received an Email from Prof. Shahid Amin also addressed to the accused containing an attachment Bara Masa Bahraich fair appx.pdf. He wanted him and the accused to collaborate on the translation of the above attachment. On 06.02.2015, he received an e mail from the accused who asked him to sit with him on the translation. Since he was busy in his practice, he could not coordinate. On 29.03.2015, at 10.15 a.m, he received another e mail from the accused which contained an attachment (English translation of the aforesaid poem). He stated that it was acknowledged at Pages 244 and 316 by Prof. Amin in his book Conquest And Community The Afterlife of Warrior Saint Ghazi Miyan which has the translation of the aforesaid poem. He proved the emails Ex. DW 1/B, the attachment Ex. DW 1/C, Ex. PW DW 1/D and the book Ex. DW 1/E and proved the certificate u/s 65 B of the Evidence Act. He also brought his laptop which had the emails. He stated that he knew the accused since 2005/2006.

DW 2 Rajesh Paul was the Assistant Manager, MERU Cab Co. Pvt. Ltd. He brought the record FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 60/161 of MERU Cab booking from mobile number 7042132004 of the prosecutrix Ex. DW 2/A. He stated that three bookings were made on 28.03.2015 through mobile app. Job creation time of the first booking was 20:07 hours. Job creation time of the second booking was 22:12 hours. The driver's name was Vinod Kumar Sharma and number was 9971536132. He stated that the second job was cancelled by the customer for the reason 'change in travel plans'. Third job creation time was 22:35 hours. The driver's name was Manish Kumar with phone number 9582183393. He stated that the third job was cancelled by the customer for the reason 'change in travel plans'. He proved the certificate u/s 65 B of the Evidence Act Ex. DW 2/B in respect of the record Ex. DW 2/A. On being crossexamined, he stated that the server in which the booking are stored is located in Mumbai. He admitted that after a booking is made, the customer is informed by SMS. They also give the number of the caller to the driver. He stated that there is global positioning system (GPS) in his company by which the company can know whether the cab is in hire mode or in free mode. He stated that the cancellation of booking can be made by pressing FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 61/161 one of the options provided by MERU Cab. He also submitted the print out showing the three options available in MERU App regarding cancellation of booking Ex. DW 2/CD1.

DW 3 Darrain Shahidi is the friend of the accused. He is a journalist by profession. He had met the accused in the year 1998 when he had been working with NDTV. The fatherinlaw of the accused was the Vice Chancellor of the University from where he had studied. He used to visit the house of his fatherinlaw. In 2012, he joined the team of Dastangoi. They presented the shows of Dastangoi in different parts of the country.

He stated that they had a program to celebrate ten years of Dastangoi. Their schedule for the March and April 2015 was very busy. On 08.03.2015, he and the accused did a show at National Museum. They repeated it on 29.03.2015. They did many programs and shows during the period from March, 2015 to April, 2015 on Dastangoi. On 03.04.2015, Ravish Kumar from NDTV had come to the house of the accused where he interviewed him and the accused. He proved the emails and the notices of some of the shows presented during the period Ex. DW 3/B collectively (16 pages).

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 62/161 He stated that he had met the prosecutrix 34 times i.e once when he and the accused had gone to Radhika's house at Gulmohar Park. On the way, they stopped at Hauz Khas village where the prosecutrix gave a book to the accused. From there, he, the accused and the prosecutrix went to a restaurant 'Yeti' and then to Radhika's house. They went to a hotel at Green Park in the car of the accused. There the accused told him that he would have to leave immediately. Radhika admired the book which the accused asked her to keep. He noticed that the prosecutrix somehow was not happy on this. He stated that he met the prosecutrix next time when he was in the Press Club of India with his friends. Danish had brought her there. The accused came later and immediately left the club. The prosecutrix on this said "ye hamesha aise hi karta hae".

He stated that on 28.03.2015 he talked to the accused on phone several times. The accused had to meet some publisher. Ankit and Poonam had come in his house for rehearsals. Ankit had to go on the same night to Bhopal. He (DW3) had a meeting in Press Club of India. They had to meet the accused at about 9.00 p.m. The accused had told him that he has called Ashish FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 63/161 in connection with his show with Ravish. He stated that his meeting went for long and at about 9.30 p.m, he received a call from Roomi. Roomi told him that he was going there. He told Roomi that he would be late because of his meeting. At about 10.00 p.m, he and the accused talked to each other on the mobile for 23 times. The accused had told him that Ashish, Roomi and the prosecutrix were in his house. He said hello to the prosecutrix and thereafter they decided that he would not go to the house of the accused. On 29.03.2015, he went to his house in the afternoon and did the reading of the performances which they had to perform at National Museum. He stated that the accused made the call to him at 22:02:31 and asked him when he was reaching his house. He told him that he would wind up the meeting and reach. He stated that at 22:04:36 he called the accused and asked him to drop the additional lines. At 22:08:07, the accused called back and said 'it is ok'. He stated that it was during this call, he spoke to the prosecutrix and said hello. On being crossexamined, he denied that the prosecutrix did not gift any book to the accused in his presence or that at that time the accused was already intoxicated. He denied that FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 64/161 the accused had taken liqour in the house of Radhika or that Radhika was in separate car on the way to hotel. He denied that only the accused and the prosecutrix were sitting on the rear seat of the car on the way to the hotel. He denied that after the accused left the hotel, he and Radhika told the prosecutrix that the accused has a drinking problem. He denied that on 14.03.2015 at 10:22 p.m he made call from the phone of the accused to the prosecutrix that they would not be able to attend the party as the accused was heavily drunk. He stated that he does not know if on the morning of 28.03.2015, the accused had invited the prosecutrix in his house for dinner or that he had informed the prosecutrix later about the change in plan that they were going to attend a wedding. He denied that on that day, the accused had not told him that he has called Ashish in connection with format of the show with Ravish Kumar. He denied that he and Ashish Singh have deliberately introduced these facts to help the accused being his close friends and associates. He denied that Ashish Singh and Roomi knew that the accused has a drinking problem. He denied that from around 10.00 p.m till about 10.15 p.m, when he spoke with the accused and FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 65/161 the prosecutrix on phone, Ashish Singh and Roomi were in the house of the fatherinlaw of the accused at 137, Pocket B DDA Flats, Sukhdev Vihar as they had gone there to ask Anusha to return home to take care of the accused. He denied that the accused did not tell him that Ashish and Roomi are present in the house when he spoke to him on phone at 10:02 p.m and 10:04 p.m. He stated that he did not know that the phone of the accused was on speaker mode when he spoke to him at 10:00 p.m or that the prosecutrix had heard their conversation. He denied that immediately after his conversation with the accused, the prosecutrix phoned him from the mobile of the accused and he spoke to her. He denied that the prosecutrix had told him that he has to come to the house of the accused since the accused was crying and intoxicated and there was no one to take care of him or that he had asked the prosecutrix to stay and take care of the accused as he has a performance the next day stating that he cannot come. He also denied that he had asked the prosecutrix to give some water to the accused and put him to sleep. He also proved the copy of notice of program "Poetry meets Music in Deccan" held on 29.03.2015 on the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 66/161 website of Ministry of Culture Ex. DW 3/PX1. He admitted that he knew that the accused was admitted in rehabilitation center at Chhattarpur between April, 2015 to May, 2015. He stated that as far as he knows, accused has a bipolar disorder and for that purpose he was admitted there. He denied that the accused was admitted for curing of his drinking problem and alcoholism. He admitted that between June, 2015 till today he is in touch with the family of the accused, visited the jail to meet him, spoke to him after he was released from jail but he denied that he had followed the trial of the accused. He admitted that he did not meet any single police officer nor made representation regarding the facts deposed in the court.

DW 4 Sh. Surender Kumar was the Nodal Officer from Bharti Airtel Ltd. He stated that as per the record EX DW 4/A, the Caller Line Identification after decoding Alphanumeric Hexadecimal String:4C66BA9549657824 is DMMERUCB. He proved the CDR Ex. DW 4/B in respect of Mobile Number 9818846416 of Darrain Shahidi for the period from 28.03.2015 to 29.03.2015 and the certificate u/s 65B of the Evidence Act Ex. DW 4/D. He stated that the normal range of the cell tower is 300600 meters FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 67/161 depending upon the density of the area. He admitted that if two towers are installed in the same area of the same company, sometimes the range overlaps and they cannot tell the exact location of the user of the mobile phone from the Cell ID Tower. He stated that in the cell ID location chart, they give the location of the cell ID tower not the location of the user of the mobile phone. They normally mean the range of the tower while giving the location of the user of the mobile phone. He stated that location of the user of the mobile phone will be in respect of the nearest tower but it will depend upon the density of the users. He stated that he cannot comment what is the maximum range of the cell ID tower. DW 5 Vikram Kumar is Business Analyst, IT Corporate, MERU Cab Co. Pvt. Ltd, Hyderabad. He stated that the servers of the MERU Cab are located in Mumbai and the technical team which has access on servers is at Hyderabad only. He stated that he had accessed the booking data and trip data pertaining to customer mobile number 7042132004 in the name of the prosecutrix and as per the data, on 28.03.2015, three bookings were made from the mobile i.e. I phone through mobile app at 20:07, 22:12 and 22:35. He deposed on the lines of DW 2 and proved the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 68/161 Excel sheet print Ex. DW 5/B (4 pages) and the certificate u/s 65B of Evidence Act Ex. DW5/C. He also proved the document Ex. DW 5/B containing the details i.e name and mobile number of the driver, subscriber first name and mobile. He stated that the time mentioned in the column at Point A is the time when booking button was pressed by the customer and not the time when the cab was assigned. The time mentioned in column at Point B is the time when the request for booking was received at the server and the time difference between pressing button by the customer and the request received at the server may vary from 10 to 60 seconds depending upon the speed of the network. However normal time taken by the customer from opening the phone till booking varies from 30 to 60 seconds depending upon the type of phone, network he is using and the speed of the person on the mobile. He stated that the certificate Ex. DW 5/C was given by the legal team, however he read it before signing. DW 6 Pradip Singh was the nodal officer Vodafone. He proved the CDR in respect of the mobile number 9999578653 for the period from 25.03.2015 to 29.03.2015 and 19.06.15 to 09.07.2015 Ex. DW 6/A and the certificate u/s FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 69/161 65B of the Evidence Act Ex. DW 6/B and the cell ID chart Ex. DW 6/C. He also proved the CDR in respect of the mobile number 8860693041 of the date 28.03.2015 Ex. DW 6/D and the cell ID chart Ex. DW 6/E and the certificate u/s 65B of the Evidence Act Ex. DW 6/G. He also proved the CDR in respect of the mobile number 9873078449 for the period from 28.03.2015 to 20.06.2015 Ex. DW 6/H and the certificate u/s 65B of the Evidence Act Ex. DW 6/I. On seeing the CDR Ex. DW 6/A and the entry of SMS on 28.03.2015 at 20:48:47 hours with cell ID as 404111111643396, he stated that cell ID provides the location of the mobile tower at H. No. 12 Sukhdev Vihar which is 3G. In Ex. DW 6/D, there is an entry at Point X404110012343392(2G). The cell ID provides the location of the mobile tower at H. No. 12, Sukhdev Vihar. He stated that the 15 digit cell is called as the Cell Global Identifier and the tower ID is deciphered from the last five digits. He stated that the fifth digit is the sector and the other four digits are the tower location. On being crossexamined, he proved the customer application form in respect of mobile number 9999578653 Ex. DW 6/K issued in the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 70/161 name of Ashish Singh. He also proved the CDR of the mobile number 8860693041 Ex. DW 6/D issued in the name of Mashood Ur Rehman Farooqui. He stated that as per the entry at Point A in CDR Ex. DW 6/H of mobile number 9873078449, there was an outgoing call from 9873078449 to 9818846416 on 20.06.2015 at 01:55:22 for the duration 1724 seconds. He stated that a missed call is not reflected in CDR. He stated that as per the entry at Point B and C in CDR, there were incoming calls from 9818389291 to 9873078449 at 08:25:15 for 248 seconds and at 08:29:37 for 497 seconds on 20.06.2015. He stated that the cell ID reflects the geographical limit of the cell towers which covers a certain range(distance). He clarified that the CGI15 in respect of H. No. 12, Sukhdev Vihar, New Delhi is 404110012343391. 404 denotes country code (India), 11 denotes Vodafone Delhi, 00123 denotes location area code if it is 2G, 4339 denotes cell ID and 1 denotes the sector antenna of the same tower. He admitted that cell ID number represents the general tower location of the mobile phone. He proved the 2G tower list and 3G tower list showing the location of the towers in the area of Sukhdev Vihar Ex. DW 6/L, as per which, there FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 71/161 are five towers in the area of Sukhdev Vihar catering 2G and 3G connections. He stated that the towers are the same but their frequencies are different for 2G and 3G connections. He stated that it is not possible for a person using mobile phone in the area of Sukhdev Vihar to catch the ranges of the tower at Friends Colony.

ARGUMENTS

14. I have heard the arguments advanced by Ms. Nitya Ramakrishnan assisted by Mr. Ashwath, Ld. Counsels for the accused and Ms. Vrinda Grover assisted by Ms. Ratna Apnendar Ld. counsels for the prosecutrix and Sh. Mohd. Iqrar, Ld. Addl. PP for the State.

PROSECUTRIX'S ARGUMENTS

15. Ld. counsel for the prosecutrix Ms Vrinda Grover vehemently argued that the accused has committed rape of the prosecutrix, a foreign national, when she went to his house upon his invitation on the evening of 28.03.2015. He committed forced oral sex on her within the meaning of Section 375(d) IPC. In his reply to the email dated 30.03.2015, he has apologized to the prosecutrix for the said act. Ld counsel stated that the prosecutrix could not cope up with the trauma and went to US. It was only after receiving the support from her family and friends in US, she could gather courage to return to India. She then lodged the FIR on 19.06.2015. Ld counsel stated that the evidence of the prosecutrix is of sterling quality. It is consistent and credible. Her evidence has been corroborated in all material particulars by the prosecution FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 72/161 witnesses as well as by independent record comprising of emails, SMS, Whatsapp communication as well as CDRs. Ld counsel stated that the defence of the accused of impossibility of sexual assault due to the presence of PW12 Ashish in the house of the accused; and impossibility of sexual assault due to paucity of time, is without any merit in law and on facts. Ld counsel stated that the prosecutrix, a US National, a PHD scholar, who received the Fulbright Fellowship came to India in June, 2014 on a research Visa. She was researching on the subject of Nath Sampradaya of Gorakhpur. PW10 Danish Hussain introduced her to the accused as the accused hails from Gorakhpur. In connection with her research, she met the accused at Teen Murti in June/July, 2014. Thereafter, they exchanged few SMSs. He invited her to his house for dinner in January, 2015. He also invited her to accompany him to Gorakhpur but the prosecutrix declined his invitation and chose to go to Jaipur to meet her Academic Supervisor. He also went to Hauz Khas village to meet her. He again invited her in his house for dinner. Ld. Counsel stated that none of the aforesaid facts were disputed by the defence. Ld counsel stated that on 28.03.2015, late evening, the prosecutrix was raped by the accused who committed forced oral sex on her in his house. Immediately after the rape, she gave a detailed account of how the accused committed forced oral sex on her to PW10 Danish, a common friend of the accused and her, through her mobile phone which conversation lasted over half an hour ( 10.42 p.m to 11.30 p.m) which fact is proved from the testimony of PW10, the Whatsapp message between the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 73/161 prosecutrix and Danish Hussain at 22.42 Mark PX, cellphone conversations between PW5 and PW10 for 31 minutes and 54 seconds, CDR of the prosecutrix Ex. AD/D1 to D14 at 22:56:47 and 23:26:16 and the CDR of Danish Hussaini Ex. DW 6/H. Ld counsel stated that on 30.03.2015, the prosecutrix sent e mail Ex. PW 3/C9 to the accused stating that he committed forced oral sex on her on 28.03.2015. The accused in his reply accepted and apologized to having committed forced oral sex on her ( My deepest apologies). Ld counsel stated that the reply of the accused is relevant and is to be read as an admission and subsequent conduct u/s 8 of the Indian Evidence Act. In support of her contentions, she referred the case of Vivek Kalra v. State of Rajasthan, (2014) 12 SCC 439. Ld counsel stated that the Whatsapp conversation between the prosecutrix and Mathangi Krishnamurthy Ex. PW 3/C16 reveals that the prosecutrix had told her that she was sexually assaulted and she was scared. On 01.04.2015, she sent email Ex. PW 3/C1415 to her Academic Advisor Allison informing her that she was sexually assaulted and has been coping with the trauma. On 12.04.2015, she sent another email Ex. PW 3/C10 to the accused reiterating that he had sexually assaulted her on account of which she was extremely traumatized. On 12.04.2015, she received a reply from Anusha Rizvi, wife of the accused, Ex. PW 3/C11 where the accusation of rape was accepted in toto. She replied the email on 13.04.2015 Ex. PW 3/C11 to Anusha stating that she was going back to USA to be with her family and friends in order to cope with the trauma. She also received reply from Anusha Rizvi on 15.04.2015 Ex. PW 3/C13.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 74/161 She also reported the incident to Columbia University, Department of Gender based Misconduct in April, 2015 as appearing in her testimony. On 27.04.2015, she sent the email to Adam Grotski, head of Fulbright Administration informing that she was sexually assaulted and returned to US to cope with the trauma. On 06.06.2015, she after obtaining Tourist Visa Ex. PW 5/F arrived in India to lodge her complaint. On 19.06.2015, she gave a hand written complaint Ex. PW 5/A to the police on the basis of which FIR Ex. PW1/A was registered on 19.06.2015. Her statement u/s 164 CrPC Ex. PW 5/B was recorded on 20.06.2015 wherein she reiterated the facts as alleged in her complaint. Ld counsel stated that the accused never disputed that on 28.03.2015, the prosecutrix reached his house at second floor, 23, Sukhdev Vihar, New Delhi at around 9.00 p.m. PW12 Ashish Singh opened the door of the house for the prosecutrix and only PW12 and the accused were in the house when she reached. PW12 left the house of the accused leaving the prosecutrix alone with the accused. Ld. Counsel stated that the accused had asked Ashish to leave the house. The accused then spoke with DW3 Darrain Shahidi on phone. The prosecutrix was wearing a dress Ex. MO3. Ld counsel contended that having learnt that DW3 Darrain was not coming to his house, the accused, taking advantage of the fact that the prosecutrix was alone in the house with him, raped her. Her evidence with regard to the manner and nature of the rape remained unchallanged.

Ld counsel stated that the prosecutrix in her testimony has deposed:

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 75/161 "at that time accused kissed me. I said no. I pushed him away. He tried kissing me again and he said "I want to suck you". ( the witness started weeping). I said no. He started putting his hand up my dress and pulling down my underwear from one side. I was trying to pull my underwear up from the other side. He held my arms and pinned my arms and body on the diwan. I said no. I struggled to push him away but he was stronger than I was. I did not understand how he could be that much strong. I was very scared. (The witness continued weeping and restless). I thought two things. The first thing I thought "I had seen a clip from documentary of Nirbhaya case where rapist had said that if she (victim) did not fight, she would still be alive". I thought I am getting out of this and going to survive. Accused forced oral sex on me. I faked an orgasm because I wanted to end it".

Ld counsel stated that forced oral sex on the prosecutrix ended only because PW12 Ashish returned and rang the door bell as stated by the prosecutrix:

"soon after, accused said "he wants to do again", the doorbell rang and he got up to get the door. I was able to pull my underwear back up".

Ld counsel stated that there is no inconsistency and discrepancy in the description given by PW5 / prosecutrix of how the accused raped her. Her testimony is fortified by the FIR Ex. PW 1/A and her statement u/s 164 CrPC Ex. PW 5/B and the other evidences. Her demeanor shows her to be a honest and truthful witness who still bears the scars of the trauma of rape. Ld counsel stated that in a case of rape, the sole testimony of the victim is sufficient to establish the guilt of the accused and no corroboration is required. In the present case, the testimony of the prosecutrix is FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 76/161 of sterling quality. It is natural, honest and consistent and hence extremely credible and reliable. In support of her contentions, she placed reliance on the case of Ravindra v. State of MP (2015) 4 SCC 491, Aslam v. State of Uttar Pradesh (2014) 13 SCC 350, State of Punjab v. Gurmit Singh (1996) 2 SCC 384 and Om Prakash v. State of Uttar Pradesh (2006) 9 SCC 787. Ld counsel stated that the testimony of the prosecutrix is to be appreciated in the specific context and the facts and circumstances of this case. She has talked about having been sexually assaulted by the accused whom she considered her friend, whom she trusted and to whose house she had gone to on his invitation. There is no improvement, embellishment and exaggeration in her testimony. Ld counsel referred the case of State of Haryana v. Janak Singh & Ors, (2013) 9 SCC 431, State of Maharashtra v. Chandraprakash Kewalchand Jain(1990) 1 SCC 550 and State of Himachal Pradesh v. Raghubir Singh 1993 SCR (1) 1087 to contend that the Supreme Court has categorically emphasized that while appreciating the testimony of a victim of a sexual assault, the court must be alive to the specific nature of sexual violence. She would not blame anyone but the real culprit. No selfrespecting woman would put her honour at stake by falsely alleging the commission of rape on her. Ld counsel stated that in the light of consistent and unequivocal testimony of the prosecutrix, minor and immaterial discrepancies have no bearing. The Supreme Court has held in catena of judgments that minor discrepancies in the testimony of a witness are immaterial. Ld counsel placed reliance on the case of Rammi v. State of Madhya FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 77/161 Pradesh (1999) 8 SCC 649, Ashish Kumar Pal and Ors v. State 2007 (96) DRJ 371 and Narayan Chetanram Chaudhury and another v. State of Maharashtra (2000) 8 SCC 457. Ld counsel stated that the conduct of the prosecutrix post the incident displays, an urgency and anxiety to leave the house of the accused. She immediately booked a taxi from MERU app on her mobile phone Ex. DW 5/B. The MERU taxi driver could not find the house of the accused that led to five phone calls between the prosecutrix and the MERU cab driver but the driver could not locate the house. Ld counsel stated that the prosecutrix's urgency to leave is reflected in the frequent phone calls in the CDR Ex. AD1 to AD14. Ld. Counsel stated that the prosecutrix then canceled the booking so that she could book another cab. In her state of trauma, fear and shock, she used the first option available on the MERU app ( change in travel plans) to cancel the booking which is the topmost option provided in the MERU App. Ld counsel stated that the prosecutrix did not seek the assistance from PW12 Ashish in giving directions to the taxi driver as PW12 had asked her to stay back and feed the accused saying that the wife of the accused is not in the house. Ld. Counsel stated that the prosecutrix however wanted to exit from the house quickly. She therefore booked another MERU cab as evident from the record Ex. DW 5/B but that cab too was taking time in reaching there so she canceled the MERU taxi. She wanted to leave the house by taking auto but she was stopped by PW12 Ashish. On her insistence to leave immediately, PW12 agreed to call a taxi stand from the local taxi stand which he called from the phone of the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 78/161 accused. As 7 minutes had passed and the local taxi did not reach, he made another call at the local taxi stand from the phone of the accused as reflected from the CDR of the accused Ex. AD/A1 to A40. Ld counsel stated that when the prosecutrix tried to arrange for transport to leave the house of accused as soon as possible, she began texting PW10 Danish on Whatsapp. She cryptically informed PW10 Danish that things were not right with her in the house of the accused and she needs to urgently speak with him as soon as she exits the house of the accused which is also reflected in the Whatsapp messages Mark PX exchanged between 10.42 p.m to 10.48 p.m. Ld counsel stated that as soon as the prosecutrix left the house of the accused and got into the taxi, she called PW10 Danish and told him that the accused raped her. She also described the sexual assault to him. This conversation lasted for about half an hour which is reflected in the testimony of PW5 the prosecutrix and PW10 Danish and in their CDRs. Ld counsel stated that the prosecutrix was under trauma. She did not want to be alone. She went to Hauz Khas village which fact is corroborated by PW20. Further PW12 Ashish in his reexamination has stated that when he returned to the house of the accused, the prosecutrix was sitting quietly. Ld counsel stated that it is conclusively established that during the period the prosecutrix did not have any cordial conversations nor exchanged any introductions nor discussed Gorakhpur with any of the three men present in the house. She left the house without saying 'Goodbye' or 'hugging' any of the three men in the house. Ld counsel stated that the Whatsapp message sent by the prosecutrix to PW10 is a contemporaneous account of FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 79/161 the difficulty the prosecutrix was having in getting a taxi to leave the house of the accused. Ld counsel stated that the defence that the prosecutrix cancelled the taxi at the same time which was supposed to arrive is erroneous and misleading. Ld counsel referred the MERU cab booking record brought by DW 5 showing the pick up time of the taxi booked by the prosecutrix as 22:24:00 and cancellation time as 22:24:16. Ld counsel stated that the pick up time estimated for internal logistic purposes of MERU is not the exact and precise time at which the taxi will arrive for the passenger. Importantly this time is not communicated by MERU to the customer. Ld counsel stated that the conversation which the prosecutrix had with PW12 at 23:25:46 for a duration of 14 seconds relates to her informing PW12 that she has reached her destination since PW12 had called the cab for her and earlier told her that it is too dangerous for her to take an auto. Ld counsel stated that the reason, the prosecutrix was in the house after the rape, is because despite her best efforts, the taxis she booked did not come to pick her up. It was quite late at night. She could not leave the house without arranging a mode of transport. She was in a state of shock, disturbed, rattled and nervous while she was trying to arrange transportation to leave the house of the accused. Ld counsel stated that the defence that the prosecutrix was comfortable in the house of the accused also stands repudiated by the MERU bookings.

Ld counsel stated that the Whatsapp messages and telephonic conversation with PW10 Danish on 28.03.2015 immediately after the rape between 10.42 p.m and 11.30 p.m must FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 80/161 be read together as a composite communication and a contemporaneous corroboration of the prosecutrix's testimony of rape. Ld counsel stated that the pointed and categorical reply of the accused to the email of the prosecutrix dated 30.03.2015 "my deepest apologies" is an unambiguous culpable admission by the accused that he committed forced oral sex on her. The words of the prosecutrix's email communicate forced oral sex committed upon her by the accused and leave no room for any confusion or misinterpretation. The reply of the accused is specific, clear and definite. He by his own admission is highly educated, proficient in the use of English language and could not in any way have misunderstood or misread that the prosecutrix was referring to anything other than the forced oral sex committed by him. The feeble excuse made by the accused in his statement u/s 313 CrPC that he responded to the email hurriedly as he was speaking to someone else on phone at that time and had not fully read the email, lacks merit and credibility. The accused never sent any email thereafter to the prosecutrix denying or refuting the charge of forced oral sex made by her. Ld counsel stated that the email by the prosecutrix was sent at 10.47 a.m. The accused replied at 10.52 a.m and the accused CDR shows no incoming or outgoing calls or SMSs from 10.52 a.m to 11:12 a.m on 30.03.2015. Ld counsel stated that the accused replied to the prosecutrix's email within a few minutes of reading the email only proves that the accused knew exactly what the prosecutrix was referring to and that accusation of forced oral sex was true. He answered the email promptly without a second thought. The phone call made by the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 81/161 accused to the prosecutrix for 76 seconds at 12.35 p.m was after one and a half hour of his reply to the email. It is unbelievable and contrary to normal human behaviour that a man who has been accused of rape by a woman would take the allegation so lightly. Further the content of the telephonic conversation that the accused has alleged to have had is not on record. The defence that this email of the prosecutrix declares love, friendship, attraction and respect for the accused and the accused telling the prosecutrix over phone that he is not interested in any contact with her falls apart and cannot be believed. Ld counsel referred to the Whatsapp message exchanged between the prosecutrix and Mathangi Krishnamurthy between 31.03.2015 to 01.04.2015, email sent by the prosecutrix to her Academic Advisor Allison on 01.04.2015; email sent by the prosecutrix to the accused dated 12.04.2015 and reply of Anusha dated 12.04.2015; prosecutrix telling her friend PW11 within a few days that accused sexually assaulted her, and stated that in all these communications she has alleged that she was sexually assaulted by the accused. Ld counsel stated that the independent documentary record also corroborates the testimony of PW5. Further PW20 has stated in his evidence that when he spoke to PW5 in the morning of 28.03.2015, she told him that she has been invited to a friend's house for dinner. This entirely corroborates her testimony. Even after the rape, she had met PW20. Anuj Pawra Ld counsel stated that the testimony of PW5 the prosecutrix is duly corroborated by PW10 Danish as to the incident and her condition immediately after the assault and the timings. Ld counsel stated that the defence that PW10 Danish was FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 82/161 not told about the sexual assault on 28.03.2015 and that his memory is faulty and is influenced by the email of 12.04.2015 is baseless and unfounded. The reason, why the prosecutrix did not explicitly write in the Whatsapp message that the accused sexually assaulted her, was because at that time she was still in the house of the accused and the accused was with two other men who were close to him. In these hostile circumstances, she had told Danish that she wanted to speak to him as soon as she would leave the house. Ld counsel stated that PW10 Danish has clearly and categorically stated that the prosecutrix on the night of 28.03.2015 had told him that accused had pinned her arms down and forced oral sex on her. Since there was an admission and apology on the part of the accused as evident from the email dated 30.03.2015 there was no reason for Danish to raise the issue with the accused particularly given the sensitive and awkward nature of the subject. His conduct is exemplary and shows great respect for the prosecutrix's privacy and well being. The fact that Danish praised the accused article and interview only shows that he is a fair and nonpartisan witness who bears no ill will to the accused. He only spoke about the incident when he was called by the police during the investigation.

Ld counsel submitted that the rape disrupted the prosecutrix's work, research, life and peace of mind. She had to abandon her research. She left India to cope with the trauma. She in her email of 12.04.2015 reflected her traumatized state of mind. Ld counsel stated that rape is one of the most heinous crime committed against a woman as it insults womanhood and violates FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 83/161 the dignity of a woman and erodes her honour. Ld counsel stated that the defence that Anusha Rizvi did not inform her husband of the emails since he was in rehabilitation center from 07.04.2015 to 07.05.2015 and thereafter her father was unwell and she did not speak to the accused about the sexual assault until June, 2015, is untenable. The CDR of the accused shows that Anusha was in regular contact with the accused between 07.04.2015 to 08.05.2015. They were talking to each other everyday and had long conversations especially on the days on which the emails between Anusha and prosecutrix were exchanged. Significantly Anusha did not express even an iota of surprise on reading her emails describing how her husband committed forced oral sex on her. This leads to an inference that she was well aware of the accused's behaviour particularly in matters related to his sexual conduct. The deletion of the email by Anusha Rizvi as coming in the statement of the accused u/s 313 CrPC infact amounts to destruction of evidence and proves her complicity with the accused. No reasonable or respectable person nor his wife would remain silent if a false allegation of rape is made by a woman via email. The silence, apology and admission only implies that the accused and Anusha both knew that the accused had committed forced oral sex upon the prosecutrix. Further the actions of Anusha Rizvi and the accused upon learning that the FIR has been lodged against the accused on 19.06.2015 revealed their true colours. Anusha sent two messages to Danish and also spoke to him on phone. She and Darrain asked Danish to intervene and influence the prosecutrix so that she could not narrate all the incriminating facts to the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 84/161 Magistrate. This was an attempt by the accused, Anusha and Darrain to dilute the case. In support of her contentions, she referred the CDR of PW10 Ex. DW 6/H. Ld counsel stated that the facts on record would show that the accused and his wife did not contact Danish after 30.03.2015 and 12.04.2015 when they received the emails from the prosecutrix. They were indifferent to the prosecutrix's traumatic cries of rape. Since the prosecutrix had gone to USA, they assumed that there would be no legal consequences for the accused for raping the prosecutrix. As regards delay, ld counsel referred the case of Ashok Kumar Chaudhury v. State of Bihar (2008) 12 SCC 173, State of Uttar Pradesh v. Manoj Kumar Pandey (2009) 1 SCC 72, Ravinder Kumar & anr v. State of Punjab (2001) 7 SCC 690, Satpal Singh v. State of Haryana (2010) 8 SCC 714 and Santhosh Moolya & Anr v. State of Karnataka (2010) 5 SCC 445 to contend that mere delay in lodging the FIR is not by itself is fatal to the case of the prosecution. It is a relevant factor of which the court is obliged to take notice and if it is satisfactorily explained, the prosecution case cannot be thrown out. Ld counsel stated that immediately after the rape, the prosecutrix was in a state of trauma and anguish. She tried to continue with her work and stay in India and even travelled to Rajasthan for a short break but none of this helped her to cope with the severe trauma and agony caused by the rape. She was in foreign land. She decided to go back to US to be with her friends and family to get their emotional support from them. She also filed a report about her sexual assault with the Department of Gender based Misconduct at Columbia University.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 85/161 When she recovered from the trauma and regained her courage, she came to India and filed the complaint. She also wrote to the Head of Fulbright Fellowship Mr. Adam Grotski when her visa was due to expire on 11.05.2015 that she was sexually assaulted and she needed to return to file a complaint and continue with her research work. Through the entire month of May, 2015 she was in communication with the Fulbright Authorities for extension of her research visa but due to delay on the part of the Delhi University to provide the relevant papers, her research visa extension could not be processed. She applied for a one month tourist visa and returned on 06.06.2015. She made efforts to find a lawyer since she was unfamiliar with the procedure and legal requirements in India. The Courts in Delhi were on vacation. Most lawyers were unavailable. She contacted few lawyers but they knew the accused. Since her visa was going to expire on 05.07.2015, she decided to file the complaint without lawyer. She took her friend PW11 Jacklyn with her and made the complaint Ex. PW 5/A. Ld counsel stated that the delay has been explained satisfactorily and in great detail. Ld counsel stated that she had tried to contact the US Embassy but they refused to intervene in private matters. There is nothing to show that the US Embassy actually provides legal aid to the victims of sexual assault. Mark D2 are mere advisories. Ld counsel stated that the testimony of PW12 Ashish is untrustworthy, false and motivated. He is a childhood friend of the accused as they both belong to Gorakhpur and share strong bonds of friendship. The rape took place after PW12 left the house of the accused and Darrain Shahidi told the accused that he would not be FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 86/161 coming. He stopped his act because the door bell rang and PW12 returned. He is also very close to the brother of the accused Roomi and wife of the accused Anusha. His testimony is designed to aid the defence and protect the accused who is his friend of long standing. He in a desperate attempt to show his presence in the house of the accused at 10.00 p.m stated that he called Radhika at 10.15 p.m from the house of the accused but his CDR contradicts this and shows that no phone call from his phone until 10.23 p.m was made. His CDR shows that he sent a SMS to Roomi at 22:41 p.m. It leads to an inference that Roomi was not present in the house of the accused at that time. He did not even come in the witness box. He exchanged 11 SMSs from 22:32 to 22:43 with Anusha though as per the defence, Anusha had returned to the house. It is not normal and natural to exchange 10 SMSs with a person who is in the same house. He attempted to show that before departure the prosecutrix was normal. It is impossible that in the midst of their telephone calls, cab bookings and cancellation as well as Whatsapp messages, the prosecutrix had any conversation with Ashish or Roomi on Gorakhpur. Ld counsel stated that the testimony of the prosecution witness who is closely associated with the accused ought to be viewed with suspicion and even be discarded when it attempts to destroy the prosecution evidence. Reliance was placed on the case of Laxmi Raj Shetty v. State of Tamil Nadu (1988) 3 SCC 319.

Ld. Counsel contended that the defence of the accused that rape was impossible due to paucity of time is without any merit and is not supported by the nature of sexual assault evidence. The FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 87/161 accused has committed oral sex on the prosecutrix. Any assessment of time in this regard must bear in mind that this is not a case of penovaginal rape but rather forced oral sex. This form of rape would not require any time in the circumstances described by the prosecutrix. The time period after the last call with Darrain Shahidi ended (22:09:04) CDR Ex. AD/A1 to A40 and before the MERU server received the booking (22:12:07) Ex. DW 5/A is 3.03 minutes. The defence calculation that the prosecutrix began operating her MERU app between 22:10:07 and 22:11:27 is wrong, faulty and cannot be relied upon. DW 5 is not an expert on MERU app. Testimony of PW20 coupled with CDR Ex. AD/D1 to D14 go to show that prosecutrix did not use her phone until 22:11:41. DW 5 has not provided any document to support the time estimation made by him that the time difference between pressing button by the customer and the request received at the server may be from 10 to 20 seconds depending upon the speed of the network and the normal time taken by the customer from opening the phone till the booking varies from 30 to 60 seconds depending on the type of phone, network he is using and speed of the person on the mobile. There is absolutely nothing to show that the prosecutrix could not have begun using her app at 22:12:00. Ld counsel stated that the prosecutrix is a regular, efficient and experienced MERU app user. Ld counsel stated that the defence that the conversation and sexual assault as described by the prosecutrix could not have happened in 23 minutes is without substance and contrary to the description of rape made by the prosecutrix. The conversation which the prosecutrix made before the oral sex would not take more than 10 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 88/161 to 15 seconds. The phrase few minutes cannot be read literally. It is a commonly used term of speech to denote a very brief time. The description of rape given by the prosecutrix i.e of forced oral sex is completely possible within such a short period of time and would not have taken 1.5 to 2 minutes. Ld counsel stated that the prosecutrix was wearing a knee length dress and it was very easy for the accused to pull her underwear down ad force oral sex on her as described by her. There is no time gap between the end of the sexual assault and ringing of the door bell. When PW12 Ashish entered the house, she immediately booked the MERU cab which would not take more than 20 seconds, hence the minimum time of 2:37 minutes is sufficient for the conversation, sexual assault and entry of PW 12 Ashish Singh into the house as described by the prosecutrix.

Ld counsel stated that the defence regarding impossibility of sexual assault due to presence of PW 12 Ashish in the house is flawed, unsustainable, unreliable and untenable. The defence is relying on the testimony of PW12 to show that he was present in the house from 10:00 p.m onwards and hence the sexual assault could not have taken place. He also stated that he had sent a SMS to his wife at 10:02 p.m from the house of the accused. Ld counsel stated that the mobile phone of PW12 has been tampered with and the SMS was doctored. The CDR does not in any way establish that Ashish was in the house of the accused at the time of sending the SMS. Ld counsel referred the case of Anvar P.V v. P K Basheer & Ors (2014) 10 SCC 473, Section 79A of the IT Act, 2008 and also discussed the law relating to electronic evidence produced as FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 89/161 primary evidence. Ld counsel stated that the SMS cannot be accepted as primary electronic evidence as tampering of phone and doctoring of an SMS cannot be ruled out. He did not submit his phone to the investigating agency to be kept in safe custody. It raises a strong suspicion as to its tampering. It is only the scrutiny of forensic examination that can certify that the electronic record is free of tampering and doctoring. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65A, can be proved only in accordance with the procedure prescribed. Section 65B of Indian Evidence Act deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subSection (2) are satisfied, without further proof or production of the original. Ld counsel submitted that the SMS shown by PW12 Ashish from his phone can neither be read as primary electronic evidence nor the secondary electronic evidence and no reliance can be placed on the same. The service provider/Cell ID number does not reflect the exact location of the mobile phone user but it only reflects the cell tower location. Ld counsel referred the case of Sushil @ Jalebi v. State of Delhi (2015) SCC Online Del 13298 to contend that it may be possible that PW12 Ashish was in the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 90/161 vicinity of the house of the accused and for that reason his phone had connected to the cell tower at H. No. 12 Sukhdev Vihar. Further the SMS sent by him 'Back to Mahmood House' implies that he is going back to Mahmood's house and not back at Mahmood's house. Ld counsel stated that PW12 Ashish is a man of letters and a journalist. His choice of words would therefore be significant and cannot be brushed aside. As per the case of the prosecution, PW12 Ashish returned to the house of the accused soon thereafter just before 10:15 p.m. It is for this reason the SMS communicates that PW 12 Ashish was not in house at the accused at the time of sending the SMS and he was on his way to the accused's house. Ld counsel stated that DW3 Darrain is an unreliable and untrustworthy witness. He is a close friend and colleague of the accused. He attempted to portray that the accused was not in an intoxicated condition and he did not need to be taken care of or that the prosecutrix did not call him or that the accused was doing some other work on 28.03.2015. Ld counsel stated that his testimony is tailored in order to protect the accused from legal consequences in complicity with the accused and his wife. The defence that Ashish and Roomi were present in the house of the accused when Darrain spoke to the accused and the prosecutrix, is false and belied by DW3's own testimony. As regards the second call, Ld counsel stated that human memory is not robotic. It would be unnatural for her to have perfect recollection of every minute detail. Pertinently both the calls between the accused and DW3 were made within less than a half minute. It is therefore completely natural for the prosecutrix to remember it as one phone FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 91/161 conversation. DW 3's testimony that he discussed the work with the accused during the aforesaid phone conversation stands repudiated and demolished. Ld counsel stated that the arguments that Ashish and Roomi were present in the house of the accused when Darrain spoke to the accused and the prosecutrix is false and belied by DW3's own testimony. It is impossible to believe that DW3 would speak to the prosecutrix whom he barely knows and would not speak to Ashish Singh and Roomi his close friends for many years.

Ld counsel stated that the prosecutrix interacted with the accused primarily for the purposes of research. She consistently priortized her work. It was the accused who on numerous occasions made effort to meet and interact with the prosecutrix outside the sphere of work. The prosecutrix is a totally honest and truthful witness who did not conceal anything in her testimony. She has disclosed consensual interactions with the accused and did not hide anything. She is extremely clear on the issue of consent. She has made a categoric assertion that on 28.03.2015 the accused committed forced oral sex. She made no advances nor showed any intimacy towards the accused as alleged by the defence. Ld counsel stated that presence of Roomi in the house of the accused is not proved and is not believable. He did not step into the witness box despite being available. The testimony of DW 1 is irrelevant. His testimony shows that the request to translate the poem was sent to the accused on 03.02.2015. The translation comprised of four pages and it is impossible that the accused had worked on translation of a four pages poem for 50 days from 03.02.2015 to FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 92/161 29.03.2015.

Ld counsel stated that there is not even a whisper made by the defence about any possible motive for the prosecutrix fabricating the charge of rape against the accused who used to be her friend and someone she discussed her research work with. Why a woman would put her own reputation and well being at stake and make herself vulnerable to social and other ostracism by making a complaint of rape unless the same is true. There is no reason why she being a foreign national who returned to India, put herself to a criminal investigation and trial in a foreign country unless she is compelled by the trauma she has suffered due to the rape. The only reason, the prosecutrix filed the FIR and testified before the court is that she is seeking justice for the violation of her bodily integrity and dignity as a woman. Ld counsel in support of her contentions, placed reliance on the case Om Prakash v. State of Uttar Pradesh (2006) 9 SCC 787. to contend that if the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged. The court should ordinarily have no hesitation in accepting her evidence.

16. Ld counsel then summed up her arguments with the following submissions.

i. The testimony of the prosecutrix is consistent, clear and credible and it inspires confidence. It meets the standards of appreciation of evidence and is sufficient to base conviction of the accused. The discrepancies and inconsistencies are so minor that they do not impeach credibility of the prosecutrix and other FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 93/161 prosecution witnesses.

ii. The offence of rape in the nature of forced oral sex committed by the accused on the prosecutrix on the evening of 28.03.2015 in his house stands proved. The prosecutrix's accusation of rape committed via emails remained unrebutted. iii. The conduct of the prosecutrix post the incident displays urgency and anxiety to leave the house of the accused. The defence on the conduct of the prosecutrix immediately after the rape is strongly contradicted and refuted by the prosecutrix's evidence and the documents on record.

iv. The witnesses PW10 Danish Hussaini and PW11 Jacklyn and the documents corroborate the testimony of the prosecutrix regarding forced oral sex. The defence that PW10 was not told about the sexual assault on 28.03.2015 and that his memory is faulty and influenced by the emails of 12.04.2015 is baseless and unfounded.

v. There is admission of the accused to committing forced oral sex on the prosecutrix in response to her email dated 30.03.2015. The defence of the accused dated 30.03.2015 is untenable, not supported by evidence and lacks credibility. vi. The wife of the accused has replied to the prosecutrix's email dated 12.04.2015 without refuting or denying the charge of rape against her husband. The defence that Anusha Rizvi did not inform her husband of the emails is untenable. vii. The guilt of the accused is further reinforced by actions to influence the prosecutrix through PW10 on the night before the prosecutrix was scheduled to give her statement u/s 164 CrPC FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 94/161 before the Magistrate.

viii. The delay in the FIR has been satisfactorily explained by the prosecutrix.

ix. PW12 Ashish Singh is the close and childhood friend of the accused. He is an unreliable witness.

x. The defence that the rape was impossible due to paucity of time is without merit and not supported by the nature of sexual assault evidence. The defence that the conversation and sexual assault as described by the prosecutrix could not have happened in 2/3 minutes is without substance and contrary to the description of rape committed.

xi. The defence regarding impossibility of sexual assault due to presence of Ashish Singh PW12 in the house of the accused is flawed, unsustainable, unreliable and untenable. xii. Darrain Shahidi DW3 is an unreliable and untrustworthy witness.

xiii. The prosecutrix interacted with the accused primarily for the purpose of research. She consistently priortised her work. She made no advances nor showed any intimacy towards the accused as alleged by the defence.

xiv. Presence of Roomi in the house of the accused at the relevant time is not proved and not believable. Testimony of DW1 Ambrish Satwik is not relevant.

xv. There was no motive for the prosecutrix, a foreign woman, to lodge a false complaint against the accused. The prosecution has conclusively proved beyond reasonable doubt that on 28.03.2015 the accused committed forced oral sex on the prosecutrix which is FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 95/161 punishable under section 376 IPC.

DEFENCE ARGUMENTS

17. Ld counsel for the accused on the contrary argued that the incident of oral rape/sex/sexual assault is impossible which is also evident from the independent record and the testimony of the prosecutrix. The call to Darrain ended at 22:09:04 on 28.03.2015. The time MERU server registered was 22:12:07 p.m. There is a difference of 3 minutes and 3 seconds between the aforesaid times. Ld counsel stated that the time 22:12:07 is not the time when the prosecutrix started booking the cab. Testimony of the MERU official would show that the time of booking the cab varies from 40 seconds to 2 minutes before the confirmation comes from the MERU Cab. It goes to show that the cab might have been booked at 22:10 or 22:11:20 p.m. Ld counsel stated that if we read the testimony of the prosecutrix regarding the incident, the things she narrated might have taken atleast 7 minutes to happen ie Darrain calling, conversation with the accused, assault, ringing of door bell, accused opening the door, she going inside, she coming in the living room and then calling the MERU cab. It could not have happened in a period of one minute to two minutes twenty seconds. Every second is material. There was an outgoing call from the mobile of the prosecutrix at 22:11:21 for 20 seconds. The explanation of the prosecutrix that it was an accidental call is unworthy of credence as the prosecutrix was using an Iphone which gets auto locked and there cannot be auto calling from the phone. Ld counsel stated that the prosecutrix booked the MERU cab for leaving the house of the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 96/161 accused at 22:12 and 22:35. The cancellation time as appearing in the record of the two bookings is 22:24 and 22:41. Ld counsel stated that the criminal trial cannot be on conjectures since life and liberty of a person is involved. Benefit of doubt must go to the accused and not to the prosecution. Ld counsel stated that the prosecutrix cancelled the two bookings giving the reasons "change in travel plans". The prosecutrix did not press the button 'booking error' or the 'driver refused'. The explanation that the driver refused to come after several calls for 20 minutes is unworthy of credence. Her testimony shows that she remained in the house of accused till 10.55 p.m. Question further arises when she cancelled the MERU cab why she again called the MERU cab. The evidence shows that MERU cab left when Ashish asked her to stay. Ld counsel stated that the prosecutrix did not state in her testimony that she booked the MERU cab twice; she herself cancelled the booking when the plan changed; The trip was to start for Hauz Khas village; she cancelled it within five minutes of the booking; she again booked at 10:35 p.m;. Ld counsel stated that a woman who is sexually assaulted would like to rush after the incident. The explanation lacks bonafide being sheer misconcealment of facts. She had rather asked Ashish to book a taxi meaning thereby that she was very comfortable in the house of the accused which is difficult for a victim of sexual assault. IO did not make any investigation from the MERU cab. The prosecutrix sent a wrong message to Danish that 'MERU don't get me' rather she herself cancelled the booking of the MERU cab. Ld counsel stated that DW5 was IT Analyst and had access to the server at Mumbai. There is no requirement that the certificate u/s FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 97/161 65B Indian Evidence Act should bear the seal of the company. It is also not necessary that he should know the implications of Section 65B of Indian Evidence Act. Ld counsel referred the case of Anwar (supra) to contend that the judgment simplifies how to give the certificate u/s 65B of Indian Evidence Act and how it is to be read. Ld counsel stated that if the primary evidence is available, there is no need to go for secondary evidence. Ld counsel also referred the case of Kundan Singh v. State 2015 SCC online Delhi 13647. Ld counsel stated that the facts unchallenged amount to admission of facts. Ld counsel also referred the case of Ravinder Kumar Sharma v. State of Assam & Ors (1999) 7 SCC 435, State of UP v. Nahar Singh & Ors (1998) 3 SCC 561, Gian Chand v State of Haryana (2013) 14 SCC 420. Ld counsel stated that there is no material to indicate that any data has been manipulated by the accused or PW12 Ashish. The court may send the phone of PW12 to the Expert. The independent record probablises the message sent by PW12 to his wife at 10.02 p.m when he entered the house of the accused. CDR of Roomi also corroborates PW12 that he was in the house of the accused with PW12 at 10.02 p.m. Ld counsel stated that no adverse inference can be drawn from the fact that PW12 and Anusha exchanged messages while in the house. Ld counsel stated that the prosecutrix when she left the house had hugged the accused which is also reflected in the email in which the prosecutrix had shown her respect for the accused. Ld counsel referred the case of Ravindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 and State v. Virender Kumar & Ors (2009) 109 DRJ 71 and also submitted literature on digital evidence on mobile devices written by Eoghan FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 98/161 Casey and Benjamin Turnbull.

Ld counsel stated that the call details record of the prosecutrix shows that she took six minutes to book the cab from her house for going to the accused's house. She sent the text message to the accused at 20:08 ( just booked the cab). The confirmation from the MERU cab came at 20:13:58. So this possibility of 4 to 6 minutes will also apply while evaluating the possibility of incident during the aforesaid period. Further, the impossibility of the event is established from the testimony of PW12 Ashish who is an independent witness whom the accused had called in his house. Ld counsel stated that the phone always remained with the accused and it was never on the speaker mode. The third call to Darrain was not made by the prosecutrix but by the accused so there was no question of prosecutrix telling Darrain that accused was in inebriated condition which fact has also come in the testimony of DW3 Darrain. Ld counsel stated that Ashish had already entered at 22.00 and he did not ring any bell. Testimony of Ashish showed that he first came in the house of the accused at 20.55. He went out for 20 to 25 minutes at around 21.30 and he returned before 22.00. He produced his mobile in which he had texted message to his wife at 22:02 (back to Mahmood's place with Roomi) which timing is also reflected in the CDR of Ashish. The cell ID location of his mobile during the period from 20:48 to 21:29 was at the tower 12 Sukhdev Vihar. From 21:34 to 21:48 the location was at different tower and from 22:02 it was again at 12 Sukhdev Vihar. This fact is sufficient enough to believe that the Ashish was in the house of the accused by 22:02. The CDR of FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 99/161 Roomi Ex. DW 6/D also corroborates this fact as when he entered, at 22:03 his phone location was at tower 12 Sukhdev Vihar. This belies the testimony of the prosecutrix that Ashish entered afterwards. Ld counsel stated that if the entry to the house precedes the time of assault as stated by the prosecutrix, the event would be impossible. Ld counsel stated that the suggestion given to Ashish that he did not return before 22:00 does not carry any evidentary value. In support of her contentions, Ld counsel relied on the case Mahesh Dattatray Thirthkar v. State of Maharashtra (2009) 11 SCC 141, Gura Singh v. State of Rajasthan 1983 SCC online Raj 60 and Bachitar Singh, Santokh Singh v. State 1991(21) DRJ 65.

Ld counsel stated that it is not in dispute that from 28.03.2015 to 12.04.2015, the prosecutrix sent Whatsapp message to Danish, had telephonic conversation with Danish, sent emails to the accused and his wife but the contents of the telephonic conversation were oral which surfaced on 19.06.2015. The messages mark PX sent by the prosecutrix to Danish do not suggest any mark of sexual assault on her. She used the word 'irritation' not 'trauma'. Ld counsel stated that the story of wedding is untrue. How drunk the accused was is untrue. The messages dilute the probability of the prosecution case. Ld counsel stated that the IO did not seize the mobile phone of the prosecutrix on 22.06.2015. Even she did not refer about the Whatsapp or the screen shots till 22.06.2015. Ld counsel stated why the prosecutrix withheld the messages/whatsapp till 20.08.2015 when she fully knew that from her phone, the same FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 100/161 have been deleted. She could have told on the first day that the messages have been deleted but she kept silent. Ld counsel stated that she intentionally withheld the Whatsapp messages since she was in fear that it would probablise the defence of the accused. Ld counsel stated that the emails do not mention what actually happened with the prosecutrix. Rather they reflect that she loved him. Had she been forced upon, she would not have sent emails like this. She expressed her love/friendship even then. In the Whatsapp, she did not refer to personal misbehaviour. In the email dated 30.03.2015, she did not specify with which she went alone. In the Whatsapp message to Mathangi on 31.03.2015, she gave it a form of sexual assault. Ld counsel stated that the prosecutrix sent the email to the accused on 30.03.2015 at 10.47 a.m. The accused replied the email at 10.52 a.m. Within an hour, he made telephonic conversation with the prosecutrix which fact he has stated while answering Q. No. 49 of his statement u/s 313 CrPC which fact the prosecutrix did not refer in her complaint, statement u/s 164 CrPC and her testimony. He talked to the prosecutrix at 12:35:40 for 76 seconds. Ld counsel stated that when he received the email from the prosecutrix at 10.47 a.m, he was simultaneously on the phone which is evident from the CDR that he had 306 seconds call during the period from 10:46:46 to 10:51:52. Since he was simultaneously on phone, he had written 'my deepest apologies' but when he read her complete email, he called the prosecutrix clarifying his position. Ld counsel referred the case of Hate Singh Bhagat Singh v State of Madhya Bharat, AIR 1953 SC 468 to contend that the accused in his statement u/s 313 CrPC has explained the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 101/161 circumstances why he wrote 'my deepest apologies'. Ld counsel stated that the prosecutrix in her email dated 12.04.2015 referred it for the first time about pinning her arms down and pulling her underwear down. She did not write it in her email on 30.03.2015. The Whatsapps to Danish do not lead to infer the sexual assault situation. Ld counsel stated that what Danish stated in his testimony was not from his memory but from the emails, copy of which were simultaneously forwarded to him by the prosecutrix. It is strange that Danish after coming to know of the incident on 28.03.2015 did not contact the prosecutrix thereafter. It is not the natural conduct of a person. Even on 12.04.2015, he did not call the prosecutrix after getting the email dated 12.04.2015 sent to the accused. Ld counsel stated that Danish's conduct improbablises the verbal communication between Danish and the prosecutrix. Ld counsel stated that Danish had sent a very warm message/admiration to the accused on 04.04.2015 after his performance. It is against human conduct that he did not react against the accused and rather praised him. Ld counsel stated that Danish talked to the prosecutrix on 11.06.2015 for 43 minutes and on 14.06.2015 for few minutes. On 20.06.2015, the prosecutrix called him at 2.34 a.m and talked for 750 seconds. Danish called the prosecutrix at 2.53 a.m and talked to her for 114 seconds. Her statement u/s 164 CrPC does not say that the prosecutrix was influenced or tutored to withdraw the complaint. Further the calls were by Darrain to Danish and not by Anusha to Danish. Ld counsel stated that during the evidence of the prosecutrix, evidence of Danish was not available so there was no occasion for FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 102/161 the defence to put that the accused had tried or asked Danish to ask the prosecutrix to withdraw the complaint. It cannot be imagined that Danish would forget such conversation. If Danish had passed the request of Anusha to the prosecutrix, it might have come in the complaint/statement u/s 164 CrPC or the evidence. She has specifically stated that she was under no influence nor she was tutored. It is impossible that a person who had talked to the prosecutrix for one hour did not remember if he had talked to the prosecutrix on 11.06.2015 and 14.06.2015. Ld counsel stated that Anusha sent the SMS to Danish after the accused was apprehended by the police saying it is urgent. The accused was taken to the police station on 19.06.2015 at 3.00 p.m. The complaint was lodged at 5.30 p.m. The prosecutrix was there in the police station from 12 noon onwards. Ld counsel stated that after the Nirbhaya incident, it is mandatory for the police to register the sexual assault complaint. Since the case was registered on 19.06.2015 itself, there was no occasion for the prosecutrix to withdraw the complaint on 20.06.2015. The message was only to the extent how to proceed in the matter. There was no communication between Darrain, accused and Anusha with Danish between 11.06.2015 to 19.06.2015 so there was no question of prompting Danish to talk to the prosecutrix on 11.06.2015. Ld counsel stated that Danish had met the accused in Mumbai on 14.06.2015. The CDR of the prosecutrix and the testimony of Danish show that the prosecutrix had talked to Danish on 11.06.2015 and told him that she was going to lodge the complaint. Ld counsel stated that the logical conclusion which can be drawn is that Danish should not have FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 103/161 forgotten such a long conversation with the prosecutrix. He did not talk to the prosecutrix from April, 2015 to 11.06.2015. There was no conversation between the prosecutrix and the accused after 30.03.2015. Ld counsel referred the case of Matru @ Girish Chandra v. State of U.P 1971 (2) SCC 75 to contend that Whatsapp messages of Anusha to Danish on 20.06.2015 after registration of case do not tantamount that the accused is guilty. As regards the email dated 12.04.2015 which the prosecutrix had sent to the accused and was accessed by Anusha, ld counsel stated that Anusha is highly educated. She has written articles on the issue of women. She never asked the prosecutrix not to take action for the wrong. Ld counsel stated that she did not find it appropriate to tell the accused about the emails since the accused had been suffering from bipolar disorder and was in rehabilitation center. Her father was in the hospital. He died on 24.05.2015. She told him in June, 2015 only. She deleted the email dated 12.04.2015 from the laptop of the accused. Ld counsel stated that Anusha is the wife of the accused and the communications between her and the accused are privileged communications. It cannot be inferred that she did not complain to the accused on the emails. Further nothing can be inferred that after the emails, her relations with the accused had not become strained. She might have sought explanation from the accused which the accused might have explained which might have satisfied her that he is not guilty and that the allegations are false.

Ld counsel stated that there is inordinate delay in lodging the complaint. Admittedly the prosecutrix is a US national but she FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 104/161 has been coming to India since 2006. She was well connected with media, social activists and academicians. From the US Embassy, help was available for US citizens and victims of crime. She had the emergency contact number of the Embassy. The explanation that she contacted the Embassy but they said it was her private matter is not worthy of belief. Ld counsel referred to the text messages exchanged between the prosecutrix and the accused from 10.01.2015 to 28.03.2015 to contend that there is complete exaggeration in the testimony of the prosecutrix. She did not go to Sonal Shah after the incident. She went to Rajasthan and other public places.

Ld counsel stated that Darrain had performed with the accused on 29.03.2015 which is also evident from the record. His testimony cannot be taken as shaken being his friend. The defence has to prove its case on the preponderance of probabilities of evidence and not beyond reasonable doubt. Ld counsel stated that whenever the accused met the prosecutrix, he was always with some more persons. There was no intention on his part to have oral sex with her at any time. He always called the prosecutrix in his house except on two occasions when he met her at Nagaland Kitchen and Nehru Memorial.

Ld counsel stated that Ashish Singh has displayed in the court on 08.10.2015 that he had sent a SMS to his wife. A SMS is an electronic record as per Section 2(1)(t) of the Information Technology Act, 2000. The original is admissible by itself and does not require a certificate u/s 65B of the Evidence Act. The prosecution at no point of time raised the issue of its authenticity.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 105/161 Neither Section 79 IT Act nor Section 45A nor Section 65B of the Evidence Act precludes the Court from inspecting an original document or acting upon its contents. The text message sent by Ashish Singh to his wife for the inspection of the court is a primary evidence. Anwar case (supra) holds explicitly that in compliance of section 62 of Evidence Act, an original electronic document is admissible upon its own strength without complying with Section 65B of the Evidence Act. Ld. Counsel stated that the prosecution evidence has no forensic certificate of authenticity. The original SMS which the court has actually seen and thus exists in its original form on the phone of Ashish Singh cannot be subjected to any higher degree of authentication. Ld. Counsel stated that the prosecution has argued in disregard of the basic principle of criminal jurisprudence.

18. Ld Defence counsel then summoned up her arguments with the following submissions:

i. The record negatives the possibility of sexual assault on two counts:

(a) time frame and

(b) presence of Ashish Singh and Roomi in the house of the accused at the relevant time.

ii. There was no consistency in the later emails setting up the case of sexual assault.

iii. Danish Hussaini's testimony is almost verbatim reproduction of the emails of the prosecutrix of 12.04.2015 and not her email of 30.03.2015. His memory of phone conversation with the prosecutrix is faulty and influenced by subsequent FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 106/161 communications sent to him by the prosecutrix. iv. There was a delay in lodging the complaint. The possibility of concoction and deliberations cannot be ruled out. v. Testimony of DW3 Darrain establishes that he was expected in the house of the accused after 9.00 p.m on 28.03.2015. Only around 10.09 p.m, it was decided that he would not go to the house of the accused that evening. Ashish and Roomi were in the house of the accused when Darrain spoke to the accused three times from 10.02 onwards. His CDR corroborates his testimony which remained unchallenged.

vi. The accused was working on the evening of 28.03.2015 which is rendered probable by DW 1 and DW3. vii. The prosecutrix was comfortable in the house of the accused even after 10.15 p.m. Her conduct is inconsistent in believing the accused to be an alcoholic. viii. The prosecutrix was trying to get too close to the accused. The accused was avoiding meeting her one to one which upset her. On 30.03.2015 he spoke to her that there will be no future contacts between them. That had angered the prosecutrix which made the prosecutrix file this complaint.

ix. The defence has established its case, on the strength of independent record that the timing, sequence and nature of the allegations are impossible. Independent record, that ought to have been investigated by the State, has instead been brought to the Court by the defence. Ashish Singh had returned to the house of the accused by 10 p.m with Roomi. No other time of exit or duration of absence has been even suggested much less proved by FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 107/161 the prosecution. So, exit at 9.30 p.m and return in 20/25 minutes is admitted by way of non challenge. The CDRs of Ashish Singh Ex. DW 6/A and Mashood Farooqui @ Roomi Ex. DW 6/D show their presence at the cell tower at House No. 12, Sukhdev Vihar at 10:02 and 10:03 p.m. These entries lend credence to their clear verbal testimony that they were back in the house by 10.00 p.m. x. Every possibility in favour of the defence must be taken. The prosecution on the other hand must exclude every possibility in favour of the defence.

xi. Neither Section 79 IT Act nor Section 45A or Section 65B of the Evidence Act is relevant in this case as none of the above sections precludes the court from inspecting an original document or acting upon its contents by virtue of Section 62 and Section 159 of the Evidence Act. The SMS which the court has actually seen and thus exists in its original form on the phone of Ashish Singh cannot be subjected to any higher degree of authentication. Section 65B of the Evidence Act applies to secondary evidence and has no application when the original evidence is produced. xii. Subsequent conduct will be material only if the case is otherwise proved by the prosecution beyond reasonable doubt. The version of the defence being probable has to be accepted on account of the false denial by the prosecutrix when an opportunity was fairly given during crossexamination. No negative inference can be drawn against the accused unless his conduct is incompatible with any innocent explanation.

19. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 108/161 through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.

20. The accused has been charged with the offence of rape. As such, before adverting to the merits of rival submissions, a reproduction of the definition of the offence would be necessary and relevant.

21. Section 375 defines rape. It reads as:

"Rape A man is said to commit "rape" if he

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra or a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First against her will.

Secondly Without her consent.

Thirdly ..................

Fourthly ..................

Fifthly . ..................

Sixthly ..................

Seventhly ...................

Explanation 1. ......................... Explanation 2. Consent means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or no verbal communication, communicates willingness to participate in the specific sexual act.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 109/161 Exception 1 ..............

Exception 2 .............."

22. The essence of rape is absence of consent. Consent means an intelligent, positive concurrence of the woman. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical or moral power to act in a manner she wanted. Submissions under the influence of fear or terror or false promise is not consent.

23. In order to appreciate the evidence in better perspective, following data/evidence has been tabulated as under :

The details of the mobile phones being used by different persons at the relevant time are as under :

Prosecutrix :7042132004( before she left India for US) (Ex. AD/D1D14) :9643899194 (when she arrived on Tourist Visa in June, 2015 w.ef 08.06.15) Accused : 9818389291 Ex. AD/A1A40 Radhika : 9818802049 Anusha : 9899973769 Danish : 9873078449 Ex DW 5/H Ashish Singh : 9999578653 Ex. DW 6/A Wife of Ashish Singh : 9811996785 Darrain : 9818846416 Ex. DW 4/B Mashood Farooqui @ Roomi : 8860693041 Ex. DW 6/D Ex. DW 6/E Anuj Pawra : 9873569169 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 110/161

24. ID location of the tower at 12 Sukhdev Vihar, New Delhi.

                    2G        : 404110012343392 
                   3G         : 404111111643396
                   Bharti Airtel

Tower at 12, Sukhdev Vihar 33012_27985) Tower at Hauz Khas 33013_59345.

Tower at Chattarpur Farms 32025_21095.

25. Caller line Identification after decoding Alphanumeric Hexadecimal String of DMMERUCB is 4C66BA9549657824. Ex. DW 4/A.

26. Phone conversation between the accused and Darrain on 28.03.2015 Ex. AD/A1A40 and Ex. DW 4/B. Accused Darrain 22:02:31 58 seconds Darrain Accused 22:04:36 39 seconds Accused Darrain 22:08:07 57 seconds

27. MERU record of bookings made by the prosecutrix on 28.03.2015 ( Ex. DW 2/A and Ex. DW 5/B).

Customer Name Prosecutrix Prosecutrix Prosecutrix Mobile 7042132004 7042132004 7042132004 Job Creation 22:12:07 20:07:47 22:35:53 Time Cab Assigned 22:12:10 20:07:52 22:35:58 Time Cancel reason Change in travel Travelled Change in travel plans plans Pick up time 22:24:00 20:16:00 22:45:00 Cancel time 22:24:16 - 22:41:31 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 111/161

28. Calls exchanged between the prosecutrix and MERU taxi driver Ex. AD/D1D14 of CDR of the prosecutrix (7042132004) and Ex. DW 5/B MERU taxi driver number (9971536132).

Taxi Driver Prosecutrix 22:15:22 3 seconds Taxi Driver Prosecutrix 22:16:56 61 seconds Taxi Driver Prosecutrix 22:23:11 21 seconds Taxi Driver Prosecutrix 22:25:35 54 seconds Taxi Driver Prosecutrix 22:31:45 154 seconds Prosecutrix Taxi Driver 22:35:42 SMS O

29. Options available to cancel the booking Ex. DW 2/CD1. Change in travel plans Booking errors Driver refusing / delaying

30. Accused (9818389291) calling the local taxi CDR of the accused Ex. AD/A1A40 on 28.03.2015.

          Accused                   Taxi driver          22:40:24                 25 seconds
          Accused                   Taxi driver          22:49:35                 9 seconds

31. Phone conversation between prosecutrix and Danish after sexual assault on 28.03.2015. EX DW 6/H. Prosecutrix Danish 22:56:47 1683 seconds Prosecutrix Danish 23:26:16 231 seconds

32. Phone conversation between the accused and Anusha Rizvi between 08.04.2015 to 08.05.2015. EXAD/A1 40. Accused Anusha 12/04/15 20:20:57 187 seconds Accused Anusha 13/04/15 20:22:47 436 seconds FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 112/161 Accused Anusha 14/04/15 19:24:23 530 seconds Accused Anusha 14/04/15 19:54:48 65 seconds Accused Anusha 15/04/15 19:36:22 763 seconds Accused Anusha 16/04/15 20:17:08 712 seconds Accused Anusha 18/04/15 20:08:13 513 seconds

33. Phone conversation between prosecutrix and the accused on 28.03.2015 Ex. AD/D1 D14 and Ex. AD/A1A40.

Prosecutrix Accused 11:38:21 86

          Prosecutrix              Accused            18:20:08                  SMS
          Prosecutrix              Accused            18:47:35                      72
          Prosecutrix              Accused            18:51:13                      27
          Prosecutrix              Accused            20:08:11                  SMS
          Prosecutrix              Accused            20:24:12                  SMS
          Prosecutrix              Accused            20:47:09                      17

34. Phone conversation between prosecutrix and the accused on 30.03.2015 Ex. AD/D1D14 and Ex. AD/A1A40.

Accused Prosecutrix 12:35:40 76

35. APP of MERU Cab used by the prosecutrix and SMS from the MERU Cab on 28.03.2015. EXAD/D1 to D14.

          MERUCAB                 Prosecutrix         20:13:43                Message
          MERUCAB                 Prosecutrix         20:13:58                Message
          MERUCAB                 Prosecutrix         22:13:10                Message
          MERUCAB                 Prosecutrix         22:13:12                Message
          MERUCAB                 Prosecutrix         22:37:14                Message

36. Phone conversation between Anuj Pawra and prosecutrix on 28.03.2015 Ex. AD/D1D14.

          Anuj Pawra              Prosecutrix         14:11:39                      39
          Anuj Pawra              Prosecutrix         14:12:54                      918


FIR No. : 273/15
PS : New Friends Colony
State v. Mahmood Farooqui                                        Page No. 113/161
           Anuj Pawra              Prosecutrix    14:15:44                       SMS
          Anuj Pawra              Prosecutrix    18:42:01                        29
          Prosecutrix               Anuj Pawra   22:11:21                          20

37. Phone conversation between Danish and Darrain on 19.06.15 and 20.06.2015. EX DW6/H. Danish Darrain 01:55:22 1724

38. Phone conversation between prosecutrix, Anusha and Danish on 11.06.15, 14.06.15 and 20.06.2015. Prosecutrix Danish 00:57:33 2595 (11/6/15) Prosecutrix Danish 01:40:48 1336 (11/6/15) Prosecutrix Danish 19:29:21 82 (14/6/15) Danish Prosecutrix 19:33:03 59 (14/6/15) Prosecutrix Danish 02:34:13 757(20/06/15) Danish Prosecutrix 02:53:44 114(20/06/15) Accused Danish 08:25:15 248(20/06/15) Accused Danish 08:29:37 497(20/06/15) Anusha Danish 01:44:00 SMS night of 19/20.06.15 Anusha Danish 3.30 SMS night of 19/20.06.15

39. Anusha and Roomi Ashish Roomi Roomi Ashish Ashish Ashish Ashish FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 114/161 Vihar Ashish 22:02:20 Message, 12 Sukhdev Vihar Radhika 22:23:27 12 Sukhdev Vihar 144sec Call Ashish 22:30:22 to SMS 12 Sukhdev 22:43:56 Vihar Ashish 23:25:46 Call 14 sec

40. Tower location of Roomi on 28.03.2015 Ex. DW 6/D. Roomi 21:56:00 Different Roomi 22:03:41 12, Sukhdev Vihar Roomi 22:03:46 12 Sukhdev Vihar Roomi 22:39:48 different

41. Extracts from the Whatsapp messages sent by prosecutrix to PW10 Danish Hussaini, from 10.42 p.m to 10.48 p.m from house of accused on 28.03.2015 ( mark PX) Prosecutrix (PW5) begins whatsapping Danish Hussain (PW10) 10.42 p.m DanishWhat happened baby. 10.42 ProsecutrixMahmood baby. It's a mess 10.43 DanishWhy. 10.43 DanishWhat happened. 10.43 Prosecutrix I'm stuck here. He told me we were 10.43 going to wedding, he got super drunk, anusha left him, then is back. I don't know what to do.

                                      ProsecutrixDan I wish you were here.                            10.44 
DanishWhat wedding baby                                                                               10.44

DanishYou are stuck with Mahmood and Anusha is gone ProsecutrixI don't know. I talk to him in morning and 10.45 then later he said wedding. I got here. He's crying. People are here. Anusha just got back. Locked in room. I'm in living room and can't get cab.

                                      ProsecutrixDan when I get in auto I need to talk.               10.45 
DanishYou mean at his home                                                                            10.46 
DanishWhat is happening.                                                                              10.46


FIR No. : 273/15
PS : New Friends Colony
State v. Mahmood Farooqui                                                         Page No. 115/161
                                                                                                       p.m
DanishWho else is here                                                                               10.46 
                                                                                                      p.m
                                      Prosecutrix Yes. I don't know, two guys.                       10.46 
                                                                                                      p.m
                                      ProsecutrixYes at home                                         10.46 
                                                                                                      pm
Danish Ok                                                                                            10.47 
                                                                                                      p.m
                                   ProsecutrixMy uber isn't working and meru won't                   10.47 
          get me. They ordered me cab
                                  ProsecutrixI'm in dress for wedding but I just want                10.47 
          to go
DanishAnd Mafa is locked in his room and crying.                                                     10.47
DanishWhere is Anusha                                                                                10.47
                                     ProsecutrixNo he is here. Anusha is locked in                   10.47
          room.
DanishWho are these two guys                                                                         10.47
                                              ProsecutrixI can't remember names                      10.48
                                              ProsecutrixBaby                                        10.48
DanishOk                                                                                             10.48
DanishJust say good bye                                                                              10.48
DanishLeave                                                                                          10.48
                                              ProsecutrixI am really upset                           10.48 
                                                                 ProsecutrixOk                       10.48
                DanishAnd you will find an auto at the exit of the colony                            10.48

42. Whatsapp messages exchanged between Prosecutrix and Mathangi Krishnamurthy between 31.03.2015 and 01.04.2015. EXPW3/C-18 to C-20 "3/31/15, 1:32:30 PM: Prosecutrix: Something bad happened and I need to talk it through with you.

3/31/15, 2:08:53 PM: Prosecutrix: It's really bad. 3/31/15 2:08:59 PM: Prosecutrix: And I need you soon. 3/31/15, 2:09:49 PM: Prosecutrix: I'm talking it through with some other people, but I need you to reassure me. I was sexually assaulted.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 116/161 3/31/15, 2:17:45 PM: Matho: Do you have people around you? 3/31/15 2:22:58 PM: Matho: Are you physically hurt? 3/31/15 2:23:41 PM: Prosecutrix: I have dan and rama who have been walking me through it. No not physically Hurt. Could have been much worse. I made decisions to stop fighting.... 3/31/15 8:12:10 PM: Prosecutrix: I know. Because I have my core. I have my friends. I have you and others who want blamed me for wearing a dress.

3/31/15 8:15:09 PM: Prosecutrix: I thought he was my friend. 3/31/15 8:15:43 PM: Matho: And you were right to think so. 3/31/15 8:15:46 PM Matho: He is wrong.

3/31/15 8:15:52 PM:Matho: You aren't.

3/31/15 8:15:55 PM:Prosecutrix: It could have been worse but when your hands are held down, you make decisions. I am not strong enough.

3/31/15 8:16:11 PM: Prosecutrix: I wanted to survive.

43. Email sent by the prosecutrix to the accused on 30.03.2015 at 10.47 (Document E9): EXPW3/C9.

Mahmood, I tried calling you, but was unable to get through. I want to talk with you about what happened the other night. I like you a lot. You know that. I consider you a good friend and I respect you, but what happened the other night wasn't right. I know you were in a very difficult space and you are having some issues right now, but Saturday you really went to far. You kept asking me if you could suck me and I knew you were drunk and sad and things were going awful. I knew that this wasn't going to help things and I told you many times I didn't want to. But you did became forceful. I went along, because I did not want things to escalate but it was not what I wanted. I was just afraid that something bad would happen if I didn't. This is new for me. I completely FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 117/161 own by sexuality and I consider you a good friend. I like you. I am attracted to you but it really made me feel bad when this happened. I haven't known what to say to you since then. I wasn't sure if I would say anything. In the end I consented but it was because of pressure and your own force physically on me. I did not want things to go bad. I have only decided to tell you how I feel for your own well being. I am afraid that if you don't realize that this is unacceptable, you may try this on another woman when you are drunk and she will not be so understanding.

I do love you and wish you well. I want the best for you whatever that is but I also need you to know doing what you did the other night is unacceptable. I hope this doesn't affect our friendship, but am willing to deal with the repercussions if it does.

...Prosecutrix

44. Email sent by accused to the prosecutrix at 10.52 am on 30.03.2015 EXPW3/C9 My deepest apologies...

45. Email sent by the prosecutrix to the accused on 12.04.2015 at 12.59 p.m ( Document E10). EXPW3/C9 and C10.

Fuck you. Fuck you for doing this. Fuck you for taking away my confidence. Fuck you for making me leave India the country I love. Fuck you for taking advantage of my kindness. Fuck you. You were supposed to be my friend. Instead you manipulated me. You hurt me. I said no. I said no many times. You didn't listen. You pinned my arms. You pulled my underwear down.

In the past two weeks I have blamed myself. I have spent the last two weeks crying, processing. I have thought about death. My mother tried to fly here to get me. My sister has put my nieces on the phone to talk with me so I don't hurt myself. So I remember them and not this. Not you.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 118/161 I have been trying to figure out what I could have done differently. But I couldn't do anything differently. You invited me to a wedding. I was supposed to be going to a wedding with you and anusha or darain or who the fuck ever. I was supposed to be going to a wedding.

I have spent the past two weeks protecting you. Like I did that night. The only thing I know is I didn't do anything wrong. But that doesn't matter. I am fucking scared now. I am fucking screwed up now. I used to own my sexuality. You took that from me. You forced me to do something I did not want to do. I stopped struggling because I was scared. I wanted to get out. I did get out. So remember this what you did that night wasn't one night. What you did that night continues to affect me and my suffering. My pain. It's on your hands. When I carry this forward in life. It is your sin that I carry forward. It is your sin that I have to overcome.

You disgust me.......

46. Email sent by Anusha Rizvi to the prosecutrix on 12.04.2015 at 8.43 p.m Document E11 . EXPW3/C11.

Hi ....Prosecutrix, I chanced upon your email you sent Mahmood today. I am forced into the situation of checking his mail because he isn't available at the moment and we still need to figure out our show schedules.

I am deeply disturbed by your email. What you have described is an ordeal. I cannot imagine how you have dealt with it so far. Needless to say that I stand with you. If you require any help of any nature including legal, I will assist. This is completely unacceptable behaviour, especially for me since it happened under my roof.

You'd obviously wonder why I have not confronted Mahmood with this but instead I am writing to you directly. The reason for that is that Mahmood is in a rehab. I don't know how and when it would be appropriate to speak with him.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 119/161 The issue is also complicated by the fact that he is a Bipolar depressive.

I really don't know how to express how responsible I feel. I have already spoken with his psychiatrist and we both feel that this matter should be reported to the authorities if you so wish.

Please find me and his family with you in the process of healing, as I hope the process will be of healing.

Deeply troubled. Anusha

47. Email by the prosecutrix to Anusha Rizvi on 13.04.2015 at 7.21 P.M (Document E12) EXPW3/C11 Anusha, I am sorry you found out in this way. I know that this is very painful for you too. You are not responsible for anything that happened to me. You must not take responsibility for his actions. They are not your actions. They are his. Mehmood is the only one responsible. As you can see I am angry and hurt and processing this is very difficult right now. I cannot do it on my own at the moment and I do not have the resources in India to figure out how to begin the healing process, so I am leaving tonight to go back to New York. I need to be around my family and my colleagues. I need to get help and support for this.

Just please do me a favor and do not blame this on his bipolar condition, at least in my presence. I know about the condition but sexual assault has nothing to do with bipolar and everything to do with power. The assertion of power over another human being.

....Prosecutrix

48. Email sent by Anusha Rizvi to the prosecutrix on 15.04.2015 at 10.19 a.m (Document E13). EXPW3/C13 Hi ...Prosecutrix I am glad to know that you will be among your friends and family for the moment. I hope that you will be able to overcome this FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 120/161 horrible incident. As I said before, his brothers and I will completely support you in whatever you wish to do about it.

I understand how angry you must be and therefore misread my categorical position on such matters. The reason I mentioned Bipolar is because that is the reason why I don't have access to Mahmood and therefore I am unable to confront him at present.

Best.

Anusha

49. From: Prosecutrix To Allison Busch on 01.04.2015 at 1:19:09 AM EDT (Document E14) EXPW3/C14 to C17 Dear Allison I am arranging to get my return ticket to America in the next few days. This is very difficult for me to say and I would prefer you not to question me about it, but I was sexually assaulted and need to come home for a while to deal with this. I have sent in my MESAAS summer funding plan, which I will now need more then ever as I have research that is incomplete. I am just not able to do it at this moment and I need to come home. I would prefer if you kept this very difficult situation of mine to yourself. I am processing still and have no desire to talk about it with others or have others at the University know about it. Thank you for keeping this in confidence.

50. From Allison Busch To Prosecutrix.

On 08.04.2015 at 11.28 PM (Document E15) Dear ....Prosecutrix, Sorry for what must have seemed like an unacceptable silence.

I only had the time to open this email today in conjunction with a summer funding meeting. Needless to say I am deeply upset to hear about this news. Please let me know if there is something FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 121/161 I can do.

Take a hug.

51. From Allison Busch To Prosecutrix.

On 09.04.2015 at 7.05 PM Do you want me to help you look for some resources at Columbia? Please let me help if I can. When are you coming back?

52. From: ( prosecutrix) To Allison Busch 09.04.2015 at 12:30:52 PM EDT Dear Allison, Thank you. I will reach out to services at CU, but here I don't really have the energy to process a lot. I'm coming home on Tuesday. I tried to get an earlier flight but that was not possible. I am trying to keep myself busy with work until I can't get home to where I have a support system. As you may imagine, India is not the most sympathetic place for people like me.

Thank you for your offer but I will look when I return.

53. APPRECIATION OF EVIDENCE AND FINDINGS. A. Credible testimony of the prosecutrix.

The prosecutrix has testified on oath that on 28.03.2015 she went to her friend's house at Jangpura at about 10.00 a.m. Her friend expressed her desire to learn Urdu. She told her that the accused has a performance, the next day in Urdu. She then called the accused from her house for two tickets which he agreed. She stated that the accused also invited her at his house for dinner that night. At about 4.00 p.m, she spoke to him. He told her that his plan has changed. He asked her if she would like to attend a FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 122/161 wedding instead. She said 'yes'. She thought that his wife would also go with them in the wedding. She prepared herself for the wedding, wore a knee length dress Ex MO3 since she had to reach there at 8.00 p.m. At about 8.00 p.m, she sent him text message that she was running late. She reached his house at around 9.00 p.m in the MERU cab. She went upstairs at the second floor and rang the door bell. Ashish Singh PW12 opened the door. She followed Ashish to the living room where the accused was sitting on a diwan. Ashish sat besides him. She stated that at that time, the accused was crying since intoxicated and Ashish was comforting him. When she asked the accused what was wrong with him, he asked her to leave them alone for sometime and go to his office. She sat in his office for about 20 minutes. She wanted to have a cigarette but did not find an ashtray there. She decided to smoke in the balcony but the way to the balcony was through the living room. The accused saw her and asked her to sit on the chair next to him. He was upset. She then made jokes and tried to make him laugh. She stated that Ashish was concerned about his condition since he was crying so hard and his mucus was running down upto his mustache. She decided to make a drink for herself. The accused also asked her to get a drink for him as well. She made a drink but poured a very light drink for the accused. When she came in the living room, both Ashish and accused were sitting. The accused then told Ashish to leave saying that Darrain would be coming. Ashish then left. She stated :

She started asking the accused more about what is wrong, why he is crying and he answered to her mentioning about his FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 123/161 mother and wife. He was saying that he was very upset with them. His answers were dramatic. They both were sitting on the diwan. He picked up his phone and dialed Darrain. He put the speaker of his mobile on. He asked Darrain if he would be coming to his house. Darrain said 'no' as he had just got out of work (just finished his work) and told him that he would come tomorrow. The accused put the phone down. He got up, left the room and went somewhere. He knocked the vodka glass lying on the floor. When he left the room, she picked up his phone and pressed redial button to call Darrain.

Darrain answered and she told him that he has to come. She asked Darrain what is wrong. He said that he cannot come and he will talk to her tomorrow and she would have to stay and take care of the accused as he has his performance the next day. He asked her to give him water and put him to sleep. She ended the call with Darrain. She put the phone back on the diwan.

She stated that accused came back into the room. He was crying very hard. She was making jokes. She rubbed his head. She was feeling very much maternal to him. Accused told her that she is a good woman and he is like Budha incarnate. She thought that he was joking. She had also been joking. The accused kissed her. She said 'no'. She pushed him away. He tried kissing her again and said "I want to suck you". She said 'no'. He started putting his hand up her dress and pulling down her underwear from one side. She was trying to pull her underwear up from the right side. He held her arms and pinned her arms and body on the diwan. She said 'no'. She struggled to push him away but he was stronger than she was. She did not understand how he could be that much strong. She was scared. She thought two things. First thing she thought "I had seen a clip from FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 124/161 documentary of Nirbhaya case where rapist had said that if she (victim) did not fight she would still be alive". She thought that she is getting out of this and going to survive. The accused forced oral sex on her ( he took his tongue and licked her genitals and vagina and performed oral sex on her). She faked an orgasm because she wanted to end it. Soon after, the accused said "he wants to do again". The door bell rang and he got up to get the door. She was able to pull her underwear back up. Accused went to answer the door bell. She went from the living room towards the kitchen and saw Ashish Singh and other man whom she did not know. Accused was crying again. The two men were comforting him. She could see this through the doorway. She was back to her seat in the living room and called the Meru Cab.

In her crossexamination, she stated that the conversation which she had with the accused at that time for a few minutes was that she asked the accused what was wrong with him and he told her that he had a fight with his mother and wife. The jokes that she later exchanged with him related to how he has been dramatic and how he was like her mother. She stated that by gesture, by patting her hand on his head, she expressed feeling of being maternal and she did not use any words to express this feeling.

The testimony of the prosecutrix with regard to the manner in which she was violated by the accused has remained unchallenged and uncontroverted. From her testimony, it is evident that the accused stopped his act only because PW12 Ashish rang the door bell and returned with the brother of the accused namely Roomi.

As per the version of the prosecutrix, the forced oral sex FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 125/161 took place between the time period when she spoke to Darrain from the mobile of the accused and the time she booked the MERU cab through the app. The call details record (CDR) of the accused Ex. AD/A1A40 shows the call with Darrain ended at 22:09:04 hours(22:08:07 + 57 seconds). The server registered the booking of the MERU cab of the prosecutrix at 22:12:07 (i.e the job creation time Ex DW 5/B). SMS of the MERU Cab was received on the mobile of the prosecutrix at 22:13:10 hours (Ex AD/D1 to D14). The CDR of the prosecutrix shows that she was regular, efficient and experienced MERU apps user. Ld counsel for the accused has contended that the time 22:13:10 hours is not the time when the prosecutrix started booking the cab. Testimony of DW 2 shows that the cab assigned time was 22:12 hours and pick up time was 22:24 hours. After the booking is made, the customer is informed by the SMS. The company also informs the number of the caller to the driver. According to DW5, the time mentioned in the Ex DW 5/B is not the time when the booking button was pressed by the customer. It is the time when the request for booking was received at the server. The time difference between pressing the button by the customer and the request received at the server may vary from 10 to 60 seconds depending upon the speed of the network. The normal time taken by the customer from opening the phone till the booking varies from 30 to 60 seconds depending upon the type of phone, network he is using and the speed of the person on the mobile. Ld counsel stated that if we go by the testimonies of DW2 and DW5, the MERU cab might have been booked at about FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 126/161 22:11:22 hours meaning thereby that the sexual assault allegedly happened in the time period of 2 minutes and 20 seconds. Ld counsel also drew the attention of this Court to the testimony of PW5 regarding the sequence of events and contended that all these events atleast might have taken about 7 minutes to happen. It could not have happened in the period of 2 minutes and 20 seconds. I have given a thoughtful consideration to the above submissions. As per the CDR of the accused and the documents, the last call with Darrain ended at 22:09:04. The MERU cab registered the cab at 22:12:07. There is a time difference of 3:03 minutes. In the case of the prosecutrix, she is a proficient user of MERU app. For a person like the prosecutrix, it would hardly take 10 to 20 seconds to book a cab through MERU app. The time calculation given by DW5 is by his own estimation and cannot be accepted as gospel truth. It can safely be held that the prosecutrix made the call for the MERU cab at 22:11:47 hours. Thus, the incident had happened between the time from 22:09:04 to 22:11:47 which is the time period of 2 minutes and 43 seconds. This brings us to the moot question to be decided whether the sequence of events as narrated by the prosecutrix was possible in this time frame?

The narration given by the prosecutrix is that after the conversation with Darrain, accused came back into the room crying, she while making jokes rubbed his head, the accused told her that she was a good woman and he was like Budha incarnate. The accused kissed her. She said no and pushed him away. He tried to kiss her again and said "I want to suck you". She said no but the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 127/161 accused put his hand up her dress, pulled down her underwear from one side, she tried to pull her underwear up from the other side but the accused held her arms and pinned her on the Diwan. She said no and struggled to push him away but she found him stronger and she succumbed out of the fear which she had after seeing the documentary of Nirbhaya case and for her survival, she went alongwith the accused and faked her orgasm only because she wanted to end the ordeal. It was when the accused said that he wanted to repeat his act, the door bell ranged and she was saved. The accused opened the door but simultaneously she went to the kitchen and saw Ashish and the brother of the accused comforting the accused. She came in the living room and called the MERU cab.

While appreciating this narration, it has to be borne in mind that the act described is not of penovaginal sexual intercourse. The act described is of the accused pinning down the prosecutrix, applying his tongue on her vagina and performing oral sex. Significantly, the prosecutrix at no point of time was cross examined with regard to the time taken by the accused to perform this act. There is no reason to disbelieve the claim that the said act as described by the prosecutrix on the part of the accused took place within the time frame as discussed by me above. It is important to mention that while recording the testimony of the prosecutrix, her demeanor as noted by me has also convinced me about her credibility as an honest witness. When describing in court, the actual act of violation, the prosecutrix broke down and started weeping. She continued FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 128/161 weeping and was restless while recounting her trauma expressed in her testimony.

As regards the contention that the prosecutrix had made a call to Anuj Pawra at 22:11:21 hours for 20 seconds, PW5/prosecutrix has stated that she did not make any call to Anuj Pawra at 22:11:21. PW20 has stated that he had received a call at the aforesaid time and he said hello..hello number of times however no response came from the other side. It was blank. At about 11.30 p.m, when the prosecutrix came in his restaurant, he enquired from her about the call but she said that she never called him. Testimony of PW20 corroborates the testimony of PW5 that she never called him at 22:11:21 hours. It is relevant to note that the prosecutrix was using the touch phone/Iphone and sometimes the number dials automatically. It is not always true that an I phone gets auto locked and there cannot be auto calling from the phone. Thus, I find no plausible reason to disbelieve the claim of the prosecutrix that she did not make any call to Anuj Pawra at 22:11:21.

B. Absence of Ashish Singh PW12 from the house of the accused at the time of incident.

From the sequence of events as narrated by the prosecutrix PW5, it is evident that it was when the accused found the prosecutrix alone with him after PW12 Ashish had left the house of the accused, that taking advantage of the vulnerable position of the prosecutrix he raped her. PW12 Ashish has testified that on the day of the incident i.e 28.03.2015, he went to the house of the accused at about 8.30/9.00 p.m. When he and the accused were FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 129/161 talking, the door bell rang and the prosecutrix came. The accused told the prosecutrix to sit in the office since he wanted to talk to him(Ashish). He has further stated that he and the accused started talking and after sometime, the prosecutrix also joined them. Thereafter, he went downstairs to bring something and returned after 2025 minutes with the brother of the accused namely Roomi. He has also stated that he reached the house of the accused before 10.00 p.m. He also produced his mobile phone and displayed the message which he had sent to his wife "Back to Mahmood 's place with Roomi, will take sometime". The message records the time as 10:02 p.m. Ld counsel for the accused contended that the independent record i.e CDR of Ashish PW12 probablizes that the message was sent by PW12 to his wife at 10:02 p.m when he entered the house of the accused. Further the CDR of Roomi corroborates PW12 that he was in the house of the accused with PW12 at 10:02 p.m. As per the prosecution, the incident took place after the call to Darrain ended i.e 22:09:04. Ld counsel stated that the testimony of PW12 and the CDRs demolish the case of the prosecutrix that when the accused raped her none except she and the accused were in the house.

On an analysis of the testimony of PW12 with the CDRs, I find that the message was sent by PW12 to his wife at 10:02 p.m "Back to Mahmood 's place with Roomi, will take sometime". When Ashish Singh left the house of the accused, the prosecutrix was in the house of the accused. Except them, no one was there in the house. His Cell ID chart shows the location of his mobile FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 130/161 phone from 20:48:47 till 21:29:09 hours at the tower location, 12 Sukhdev Vihar, New Delhi. His mobile location at 21:34:16 was not at Sukhdev Vihar but at somewhere else. His mobile location from 22:02:47 again came at the tower 12 Sukhdev Vihar. The tower location of the mobile of Roomi at 21:56:00 hours was different. At 22:03:41 hours his mobile location was at the tower 12 Sukhdev Vihar. The testimony of the DW4 Nodal Officer of the service provider reveals that the tower location does not mean the exact location of the mobile phone. The tower location only shows the range which varies from 300 meters to 600 meters depending upon the density of the area. It is to be noted that there were five towers in the area of Sukhdev Vihar so the chances of overlapping of ranges cannot be ruled out. If a person is standing even at the ground floor of the house, the location of his mobile would be at the same tower location. There will be no difference in the Cell location at the ground floor or the adjacent area within the range of 300 meters to 600 meters. The words used by Ashish Singh "Back to Mahmood 's place with Roomi, will take sometime" in the SMS sent to his wife at 10:02 p.m does not imply that he had reached the house of the accused or he was inside the accused's house. It cannot be conclusively held that PW12 Ashish Singh was in the house of the accused at the time of the alleged call. Rather the testimony of the prosecutrix is very categorical to the fact that when the accused forced oral sex on her, no one except her and the accused were in the house. In the case of Sushil @ Jalebi (supra), it was held that the cell tower location provided in a CDR is not an affirmative evidence and is infact an extremely weak and FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 131/161 inconclusive piece of evidence.

PW 12 in his testimony has stated that he had received a call from Radhika at 10:15 p.m but his CDR shows that he received the call from Radhika not at 10.15 p.m but at 10:23:27 p.m. It is to be noted that Ashish Singh was the childhood friend of the accused. He hailed from the same native place as that of the accused. He was closely associated with the accused in his work. The discrepancy brought out in his testimony when matching the call timings to Radhika with the CDRs only exposes the deliberate attempt on his part to show his presence in the house of the accused despite he not being there. Facts and circumstances go to the show that when the incident took place Ashish was not in the house of the accused with Roomi as claimed by the defence. In the instant case, PW 12 Ashish had produced his mobile phone to prove the SMS sent by him to his wife at 10.02 p.m. The explanation to Section 79A of the IT Act defines "electronic form evidence". It means any information of probative value that is either stored or transmitted in electronic form and includes computer evidence, digital audio, digital video, cell phones, digital fax machines.

Section 3 of the Indian Evidence Act states that all documents including electronic records produced for the inspection of the court are called documentary evidence. For electronic evidence to be seen or read or heard as primary evidence by the court, the law requires that the original device in which the electronic evidence is stored/transmitted is placed before the court. None of the above cited sections or FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 132/161 Section 65B of the Indian Evidence Act precludes the Court from inspecting the original document, or acting upon its contents. Section 62 of the Indian Evidence Act lays down that Primary Evidence means the document itself produced for the inspection of the Court.

The Supreme Court in Anvar P.V v. Bashir P.K (supra) holds explicitly that in compliance with Section 62 Evidence Act, an original electronic document is admissible upon its own strength without compliance with Section 65B of the Indian Evidence Act. It was held that "Para 24 The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."

The Division Bench of Delhi High Court in Kundan Singh v. State ( Criminal Appeal No. 711/2014 decided on 03.11.2015) has FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 133/161 reproduced the unqualified ratio of Anvar v. Bashir in these words:

"It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with referent to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance of the conditions in Section 65B of the Evidence Act."

The case laws referred above clearly state that when electronic record is produced as primary evidence that is the original recording, the requirement or satisfaction of the condition under Section 65B of Indian Evidence Act is not required. Admittedly, Ashish Singh PW12 has produced his mobile phone showing the text message sent to his wife at 10.02 p.m. for the inspection of this Court and it is primary evidence but as discussed in the preceding paras, it can not held that he was in the house of the accused at 10:02 p.m. PW12 was the childhood friend of the accused. He knew about the registration of complaint against the accused. As per the complaint, the accused committed the rape of the prosecutrix after his call with Darrain ended i.e 22:09:04 hours. He was using the mobile phone during that time. According to PW12, the message sent by him to his wife at 22:02 was stored in his mobile. During investigation, his statement was recorded. He did not state to the police that he had reached the house of the accused before 22:00 hours or he had sent a message to his wife at 22:02 hours "Back to Mahmood's Place with Roomi, will take sometime". He did not show the mobile phone to the investigating officer nor handed over FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 134/161 it to the police. I fail to understand what had prevented him from giving his mobile phone to the police to prove his veracity as to his coming in the house of the accused prior to the incident to prove the innocence of the accused. It is also to be noted that the said instrument was not sent to the laboratory for its authenticity. He introduced the facts of coming to the house of the accused before 10.00 p.m for the first time when he appeared in the court for evidence. Even in his statement to the police, he did not say that the accused had called Darrain and Darrain had told the accused that he would not be coming to his house. He was reexamined by the prosecution on this aspect. In the case of State of Bihar v. Laloo Prasad & Anr. (2002) 9 SCC 626, it was held that the very fact that the Public Prosecutor sought permission of the court soon after the end of the crossexamination was enough to indicate his resolve not to own all what the witness said in his evidence. It is again open to the Public Prosecutor to tell the court during final consideration that he is not inclined to own the evidence of a particular witness inspite of the fact, the said witness was examined on his side. In the instant case, the prosecution placed not much reliance on the testimony of PW12 rather it was suggested by the prosecution that the voluntary part of his deposition that he reached the house of the accused before 10.00 p.m is false and he deliberately introduced this fact to help the accused being his close friend.

I also find force in the contention of the Ld counsel for the prosecutrix that it is not possible that Darrain knowing that Ashish Singh and brother of the accused were present in the house of the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 135/161 accused would not talk to them and would talk to the prosecutrix and instead ask her to take care of the accused. If Ashish Singh and Roomi were in the house, there was no occasion for Darrain to ask the prosecutrix to wait and take care of the accused till the wife of the accused returned. This very fact rather aids the case of the prosecution that at the time of incident, the prosecutrix and the accused were alone and Ashish and Roomi came thereafter. It was contended by the Ld defence counsel that the objection raised by the prosecution as to the authenticity of the message sent by PW12 to his wife in the absence of opinion of the expert, should also be applicable qua the emails of 30.03.2015 and 12.04.2015 and they should not be read in evidence as there is no certification of authenticity, nontampering and nonmanipulation by any authority as defined in Section 45A Evidence Act or Section 79 of IT Act. I find this contention sans merit. The record shows that the phone and laptop of the prosecutrix were seized during the investigation. They were sent to FSL to rule out the possibility of their tampering. The FSL report Ex. PW19/A was received about the authenticity of the above instruments and the material contained therein. The prosecutrix has also demonstrated from the laptop and the phone about the calls and the emails. C. Subsequent conduct of the prosecutrix after the incident PW12 Ashish in his testimony has admitted that when he came back to the house of the accused, the prosecutrix was sitting quietly. A scrutiny of the testimony of the prosecutrix also shows that immediately after the incident, she was anxious to leave the house of the accused immediately. Her CDR Ex.AD/D1D14 FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 136/161 shows that she made as many as five calls to MERU cab driver. When the driver did not reach the house of the accused, she cancelled the booking in desperation using the first option button available in the MERU App " change in travel plans". Since it was a first option button on the MERU app, it was natural on the part of the prosecutrix to have pressed the same being in a state of shock and trauma. She again booked the MERU cab at 22:35 hours which she again cancelled since the cab was taking time. In her desperation to get away from the house of the accused, she wanted to leave in an auto but she was stopped by PW12 Ashish who then from the mobile of the accused booked her a local taxi. Her desperation can also be seen from the fact that when the local taxi did not come within 7 minutes, she again booked the taxi. It is also to be noted that during that period when the driver was taking time or the taxi was not coming, she exchanged Whatsapp messages Mark PX with Danish Hussaini PW10 from 10.42 p.m to 10.48 p.m that her uber is not working and "MERU don't get her" and they have ordered for her a cab. She also expressed her feeling of being upset in the Whatsapp which she sent at 10.48 p.m. That the entire incident had severely upset the prosecutrix is also evident from her subsequent conduct of leaving the house of the accused without greeting him good bye. Also it is important to note that her curt reply to the request of Ashish PW12 to her to take care of the dinner of the accused where she told him to order a pizza only suggests that she was upset and wanted to disassociate herself as soon as possible from the accused. In her cross examination, she has stated that when she had entered the house of FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 137/161 the accused, she had greeted him with a friendly hug but however when she left, she did not do the same since he had betrayed her trust. She further stated that since the accused had sexually assaulted her, there was no question of her giving him a hug or her agreeing to feed him as had been requested by PW12 Ashish. Her conduct so described only corroborates her version about her being upset due to the incident of rape.

The prosecutrix as per her version from the house of the accused went to the restaurant Moonshine in Hauz Khas. This fact has been corroborated by PW20 Anuj Pawra who has testified to the prosecutrix reaching the restaurant at 11.30 p.m and being there till 1.30 a.m. This conduct of the prosecutrix only compels me to believe her claim that post the traumatic incident of rape, she was too shaken to be alone and wanted to be in the company of the persons and was scared to be alone.

D. Corroborative Evidence of PW10 Murtaza Danish Hussain resgestae evidence .

PW10 had met the prosecutrix in June, 2014. As per the prosecutrix and Danish, it was he who had introduced the prosecutrix to the accused whom he knew since 2005. PW10 Danish has testified that in the evening of 28.03.2015 when he was in Dehradun in his hotel, at about 10.30 p.m, he started receiving Whatsapp messages on his mobile phone from the prosecutrix where she indicated that she was in some sort of sexual assault situation because of which he asked her to leave immediately. The prosecutrix again called him from the cab immediately after coming out from the house of the accused and while crying she FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 138/161 told him that the accused had forced himself upon her. He sought clarification from her asking what she meant by "forced himself upon her" to which she replied that the accused pinned her arms down and forced oral sex on her. She told him that she faked the orgasm so that her ordeal can end sooner. He asked her why she did not leave immediately on which she told him that the bell rang and the friends of the accused came and also that while she was trying to arrange a cab, the friend of the accused told her that it was not safe and that they would arrange a cab for her. He was shocked on hearing about the incident. In his crossexamination, PW10 Danish has stated about the prosecutrix forwarding the emails exchanged between her, the accused and his wife and her sending Whatsapp messages wherein she expressed her trauma. The testimony of the prosecutrix stating that she immediately after the incident had told about the same to PW10 Danish is duly corroborated by PW10 Danish himself and is a vital piece of evidence being resgestae evidence. Soon after the incident, it was natural for the prosecutrix to turn to a person who could help her and whom she trusted. I attribute credence to the testimony of PW10 Danish since he had no axe to grind in ensuring the conviction of the accused. Infact admittedly he was first the friend of the accused and was also his corroborator on the ancient form of art of story telling since 2005. He was the friend of the accused before he became an acquaintance of the prosecutrix. Since he was the common link who introduced the prosecutrix to the accused, it was natural for the prosecutrix to first turn to him to complain about the person known to them in common.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 139/161 Section 157 of the Indian Evidence Act provides that where the statement of a witness requires to be corroborated, any former statement made by him on the same subject matter may be used as a corroboration. In the case of Rameshwar v. State of Rajasthan (1952) SCR 377, the Supreme Court allowed the statement to the court of a young girl who was the victim of rape, to the court, to be corroborated by the girl's own statement to her mother four hours after the incident, to the effect that she had been raped by the accused. In the instant case, the prosecutrix took almost no time to inform PW10 about the incident. The object of the section is to admit statements made at the time when mind of a witness is still so connected with the event as to make it probable that his description of the thing would be accurate. That being the position, the testimony of PW10 is relevant as to the incident narrated to him by the prosecutrix immediately after the incident. His testimony is consistent with the facts the prosecutrix stated in her testimony.

It is true that PW10 had acknowledged the performance of the accused on 04.04.2015 and had met him in Mumbai on 14.06.2015 and the prosecutrix had spoken to him on 11.06.2015 about a criminal lawyer but it is to be noted that PW10 had a long association with the accused. He had introduced the prosecutrix with the accused. In these circumstances, the possibility of his not wanting to become party to the incident cannot be ruled out. He neither favoured the prosecutrix nor the accused before he was called in the police station and enquired about the incident. He had advised the prosecutrix on the phone on 28.03.2015 not to be alone FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 140/161 and to be with her friends and when she could think better, she should do what was best in her interest. I do not find force in the contention of the Ld defence counsel that PW10 doctored his evidence after reading the emails dated 30.03.2015 and 12.04.2015 to help the prosecutrix. There is nothing to indicate that PW10 had any animus against the accused rather his testimony shows that he had admired his shows and met him number of times even after the incident. His testimony shows that what the prosecutrix told him on Whatsapp, phone calls and emails, he stated in his testimony. E. Grievance expressed by the prosecutrix about the incident to the accused via email on 30.03.2015 and 12.04.2015.

Admittedly the prosecutrix sent the email Ex. PW 3/C9 to the accused on 30.03.2015. The contents of the admitted email as set out in the preceding para no. 43 speak for itself. The prosecutrix in her email has stated that she wanted to talk to the accused but was not able to get through. She has expressed anguish over the forcible action of the accused. She has stated that he asked her if he could suck her and despite her refusing he did so forcibly. She submitted to him because of the pressure exerted by him; his physical force; and she did not want things to go bad. What he did was unacceptable. This email was sent at 10:47 AM and the accused responded at 10.52 AM with the reply"my deepest apologies". In her subsequent email sent on 12.04.2015, as set out in the preceding para no 45, the prosecutrix has evidently not got over the trauma of the incident and has vented out her bitterness more openly. It is evident that not being able to get over the trauma of being violated, she was more bitter towards the accused. She FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 141/161 was bitter against the accused for committing a sin and taking what was most precious to her i.e her control over her sexuality. The accused responding immediately to the first email of the prosecutrix and accepting his guilt, clinches the case of the prosecution. In his statement under section 313 CrPC, he has admitted replying so to the first email of the prosecutrix but has justified his reply by saying that he did not read her whole email before replying. The justification is difficult to accept from a professional like the accused who was proficient in English language. Also this justification is difficult to believe considering that at no point of time, the accused had disclosed when exactly he became fully familiar with the contents of the email and despite becoming aware of the same why he did not subsequently refute the same by a subsequent email. The promptness with which the accused replied only showed that he understood the reference to the context of the email that when they were together in the room, the accused forced oral sex on her. Also the defence raised by the accused is difficult to believe considering that there was no urgency on the part of the accused to have replied the said email. The reading of the first 23 lines of the email do not in any manner justify the reply given by the accused. This email by the accused constitutes an admission in law and is to be read as subsequent conduct of the accused in terms of Section 8 of the Indian Evidence Act. It was held in the case of Vivek Kalra v. State of Rajasthan (2014) 12 SCC 439 that under section 8 of the Evidence Act, 1972, the previous or subsequent conduct of a person is relevant if such conduct influences or is influenced by any fact in FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 142/161 issue or relevant fact. Any behaviour or conduct of a person would be relevant if it has nexus with the offence alleged to have been committed.

The emails sent by the prosecutrix on 12.04.2015 was replied to by Anusha Rizvi, the wife of the accused vide email dated 12.04.2015 as set out in para no 46. Subsequently the prosecutrix replied to the email of Anusha Rizvi on 13.04.2015 which was replied to by Anusha Rizvi vide email dated 15.04.2015. The contents of the said emails have been set out above in the preceding para nos 47 and 48. The scrutiny of the emails sent by the wife of the accused to the prosecutrix shows that at no point of time she has refuted the allegations of rape made by the prosecutrix against the accused. Rather she has expressed her sympathy with the plight of the prosecutrix and advised her to take appropriate action. This further weakens the defence raised by the accused that he refuted the allegations of the prosecutrix in his subsequent telephonic conversation on 30.03.2015. F. Corroborating evidence of PW11 Jacklyn Michael PW 11 Jacklyn Michael knew the prosecutrix since July, 2012. She had met the accused in October, 2012. She had also seen the performance of the accused on Dastangoi. PW11 has testified that the prosecutrix left Delhi in mid April since she was very upset and distraught about what happened. When the prosecutrix came back on 06.06.2015, she picked her up from the airport and on the way, the prosecutrix told her that she has come to Delhi to file a complaint about the assault. She has stated that she had gone with the prosecutrix on 19.06.2015 to lodge her FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 143/161 complaint.

G. Satisfactory explanation for delay in lodging FIR. Delay in reporting a crime to the Police has the inherent risk of fabrication and that is precisely why the Courts are extra cautious whenever there is delay in lodging of an FIR. Unexplained delay can be fatal to the prosecution case. However, not all delays are looked upon with suspicion by the Courts, especially the ones related to crimes against women, like the alleged rape in the present case. The Courts are alive to the social realities of the society where the women find it very difficult to come out of the closet and report such matters to Police for fear of humiliation. If the delay is well explained, the Court will accept the same and not attach any significance to the same. In the case of State of H.P v. Prem Singh (2009)1 SCC 420, it was held that 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 before coming to the police station to lodge a complaint.

The incident took place on 28.03.2015 and the FIR was lodged on 19.06.2015. It is apparent from the testimony of the prosecutrix and PW11, that the prosecutrix was extremely traumatized and was trying to come to terms with the incident. She tried to ignore it but could not. She wanted to be with her own people and her family because of which she travelled back to the USA on 14.04.2015. In her email dated 13.04.2015 (Ex. PW 3/C11) to the wife of the accused Anusha, she had informed that she was going back to USA to be with her family in order to cope with the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 144/161 trauma. However, not being able to get over the trauma and fueled with the strong desire to report about the incident in order to bring the accused to book, she returned to India to lodge the FIR on 06.06.2015. It is evident that it was her return to her friends and family that gave her the courage to lodge a criminal complaint in a foreign land. The prosecutrix on 01.04.2015 had sent an email Ex. PW 5/D to her academic advisor Allison informing her that she was sexually assaulted and was coping with the trauma. On 31.03.2015, she had Whatsapp conversation with Mathangi Krishnamurthy that she was sexually assaulted and scared. On 27.04.2015, she sent an email to Adam Grotski informing him that she was sexually assaulted and has returned to US to cope up with the trauma. Her Fulbright visa was going to expire on 11.05.2015. She communicated with the authorities of Fulbright Fellowship for extension of her visa but could not get it extended. She applied for a one month tourist visa. It was only on getting the tourist visa (Ex. PW 5/F), she arrived in India to lodge a complaint which she finally lodged on 19.06.2015. On reaching India on 06.06.2015, she did not file the complaint because she did not know the procedure of lodging a complaint in India. She wanted to contact a lawyer but there were summer vacations in the court. She called some lawyers but they did not take her case as they knew the accused. Since her Tourist Visa was about to expire, she herself went to the police station with her friend PW11 Jacklyn and lodged the complaint. It was contended by the Ld defence counsel that though she was an US national but she had been coming to India since 2006. She was well connected with media and social activists. Help from FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 145/161 the US Embassy was available. She had emergency contacts of the Embassy. She knew the helpline number 1091. She went to Rajasthan and other places after the incident. Despite all this, she did not lodge a complaint with the police. Ld counsel also stated that when she was in New York, she went to attend the court in some eviction proceedings.

It is true that the prosecutrix was well connected with media and social activists and had emergency contact of the US Embassy where help was available and she knew the helpline number 1091, but it is to be noted that the prosecutrix was forced oral sex by a person whom she trusted the most. She had never expected such a behaviour from the accused. She was under deep shock and trauma. She also expressed her anguish through emails. She never thought that this thing would happen with her. She was under so much trauma that she decided to go home to be with his family and friends first. She had thought number of times before lodging a complaint with the police. It is generally seen that in a case of rape, a woman takes more than usual time to come to terms with the mental and physical trauma before gathering courage to complain. That might have been the reason why she did not take the help of her friends in the media and social activists or the Embassy nor called the police on 1091 number. She had tried to come out from the trauma by visiting Rajasthan and other public places. She could not forget the incident and then finally decided to come to India on a Tourist Visa to lodge a complaint against the accused for the said act. Attending the court dates in New York would not mean that she had left all her activities after the FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 146/161 incident. Further, the prosecutrix is a foreigner and a novice in her knowledge about the working of the criminal justice system. So she took time to find her way to file a complaint. This being the position, the delay in lodging the FIR has been satisfactorily explained.

H. No reason for the prosecutrix to falsely implicate the accused.

Ld counsel for the accused contended that the prosecutrix was trying to get close to the accused while the accused generally avoided meeting her one to one. May be that upset her. Then when he spoke to her on 30.03.2015 he was very curt in telling her that there will be no future contact between them as he did not appreciate what he saw as an attempt on her part to insinuate a closeness with him and he wished for the association to end. May be that angered her. Ld counsel stated that the email she wrote on 30.03.2015 was a product of a disturbed mind. I do not find force in this contention. The prosecutrix had come to India to do research. The research was of immense importance for her. She had even turned down the invitation of the accused to go to Gorakhpur since she had to meet her academic advisor in Jaipur in connection with her research work. Whenever she met the accused, she met him in connection with her research work since the accused belonged to Gorakhpur and the prosecutrix was doing research on the topic Nath Sampradayay of Gorakhpur. She also showed her keenness to meet his fatherinlaw who was a renowned Historian and Scholar. She never attempted to be close with the accused. Even on 28.03.2015, she had gone to the house of the accused on his invitation as told in her testimony. It is true FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 147/161 that she used to appreciate the work of the accused but it does not mean that she wanted to be close with him. It is also true that the accused and the prosecutrix exchanged kisses and hugged each other which is a common social gesture in a cosmopolitan culture. Her testimony rather shows that in February, 2015, she had gone to the house of the accused where the accused had invited her for dinner. On that day, the accused had asked her to stay at night but she refused. She took a taxi and went to her house. Most of the time, she met with the accused with her friends or the friends of the accused. Her one to one meeting was only when they met at the Archive Library, Teen Murti for the first time. Their last one to one meeting resulted in this incident. She reacted to the incident immediately. She had told PW10 Danish what had happened to her. She wrote a email to the accused on 30.03.2015. She wrote to her academic advisor Allison but she ( Allison) was away. She exchanged Whatsapp with her friend Mathangi Krishnamurthy on 31.03.2015 and 01.04.2015. She told the incident to her friend PW11 Jacklyn after she arrived. She did not know how to handle her pain. She contacted her mother, sisters and friends in US who supported her. She wanted to go home. They also wanted her to come home too. She also reported the incident to Columbia University Department of Gender based Misconduct. According to her, research was her life and for that purpose, she had come to India. She was not sure if she would come back again after what had happened to her. She tried to continue her research but she could not. She could not forget or get over what the accused did to her. She trusted the accused most. She had full respect, regard and FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 148/161 love for him. She never expected from the accused that he would behave like this. She decided to make a complaint after mustering courage which previously she did not have. She came to India and made the complaint. Her testimony shows that she wanted to ignore the incident but she could not, since she knew that what the accused did to her was wrong.

She has categorically denied that she wanted to be close to the accused rather she stated that she used to respect him. She had faith in him. Her testimony shows that she had seen the accused in an alcoholic condition earlier. She was not afraid of his condition. Had she been afraid she would have left his house finding him over drunk as stated in her testimony. She informed Danish who was also a close friend of the accused. She thought number of times before lodging the complaint. Even otherwise, a woman would not put her reputation at stake unless and until such incident had not happened with her. I do not find an iota of evidence to draw an inference that the prosecutrix had any motive to falsely implicate the accused to settle her score when the accused refused to come close to her. Her testimony and demeanor rather prove what had happened with her and her testimony is not shrouded with suspicion and is worth believing. Her testimony is well corroborated by the documentary and oral evidence. She has categorically denied the presence of Ashish and Roomi at the time of alleged incident.

In Vijay @ Chinee v. State of Madhya Pradesh, Crl. Appeal No. 660/2008, the Apex court referred to the decisions in Chandraprakash Kewalchand Jain (supra) and also few other FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 149/161 decisions and observed that the important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. A woman will not put her reputation in peril by alleging falsely about forcible sexual assault. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim. In State of Punjab v. Gurmit Singh & Ors., 1996 AIR SC 1393, the Supreme Court made the following observations:

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her".

In the case of Om Prakash v. State of U.P (supra), it was held that if the totality of circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. I. Contradictory versions of the prosecutrix why she did not leave the house: cab booking: and her leaving the house after the incident.

Ld counsel for the accused argued that in the Whatsapp message of the prosecutrix to Danish on 28.03.2015 beginning from 10.42 p.m Mark PX there is no reference to the assault or FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 150/161 friend's entry. There is only reference of Anusha's entry or that she can't get a cab. In her statement u/s 161 CrPC, she had stated that the accused was crying and she was asked to stay until everyone returns. In her testimony she has stated that after the door bell rang, his friends came in. She was trying to arrange a cab but his friend said that it is not safe and they would arrange one for her. In her complaint, she has stated that she tried to leave, she ordered a MERU cab and started texting Danish. She told Ashish that she wanted to go but he said that if the wife of the accused, Anusha would not return she would have to feed him, the MERU left. In her statement u/s 164 CrPC, she stated that when the guys came she called a MERU cab. She told Ashish that she is going but Ashish asked her not to go. They have to see if Anusha is coming. If Anusha would not come, someone has to feed him. She sat. The accused said to her that she has to leave as Anusha has come. Ld counsel stated that she made improvements in her testimony at times and she is unworthy of belief.

Although certain facts have come in the testimony of the prosecutrix which were not in her complaint and the statements recorded during the investigation but on going through these facts I find that these facts give clarity of the incident and in no way it can be said that there are improvements/exaggerations/embellishments in the testimony of the prosecutrix. She was consistent on the fact that after the incident she wanted to leave the place immediately. She ordered a MERU cab but it did not come. She again ordered a MERU cab but it did not come since the driver could not locate the house. She FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 151/161 wanted to leave the house by taking an auto but Ashish told her that it would not be safe to take an auto at night. He then called a taxi in which she went. Although she has stated that she had asked Ashish to order pizza for the accused which fact has been denied by PW12 Ashish and DW3 Darrain in their testimonies but no undue importance can be attached to this contradiction. A victim of such an incident cannot be expected to possess photographic memory and to state the facts in a parrot like manner. Minor contradictions are bound to happen if the witness is examined after a lapse of time. No credence can be given to these minor contradictions if they do not go to the root of the matter and create suspicion as to the veracity of the incident. I get support from the case Rammi v. State of Madhya Pradesh (supra) and State of Punjab v. Gurmit Singh & Anrs (supra). In the case of Ashish Kumar Pal & Ors v. State & ors (supra), it was held that the normal course of the human conduct would be that while narrating a particular incident, there may occur minor discrepancies, such discrepancies in law may render credence to the depositions. Parrot like statements are disfavoured by the courts. In the case of State of Rajasthan v. Kalki (1981) 2 SCC 752, it was held that in the deposition of witnesses, there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.

In the case reported in Bhargavan v. State of Kerala (9) FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 152/161 ADSC 403 it was held, "normal discrepancy is expected, however, honest and truthful a witness may be. This does not corrode the credibility of the witness." The human memory is vicissitudinous. It was held in the case of Siddiqua v. NCB 137(2007) DLT 500 that a small contradiction here and there would not make the testimonies of the witnesses doubtful. Minor discrepancies are very natural to occur. The court has to consider the entire evidence as has been adduced before it and then come to the conclusion. Minute details of the incidents with the passage of time go out of memory. It is not as if a video tape is replayed on the mental screen. Sometimes the witness cannot anticipate the occurrence which so often has an element of surprise. In the instant case, I find the prosecutrix firm, consistent, cogent and trustworthy. Rather her honesty can be proved from the fact that she has deposed that she was never influenced by the accused or his associates. Her testimony is duly corroborated by PW11 who also knew the accused since she was also doing research and had met the accused. Testimony of PW10, her emails to the accused, her academic advisor, Whatsapp messages to Mathangi Krishnamurthy also corroborate her testimony on each and every material point.

Ld defence counsel argued that the contention of the prosecution that the prosecutrix was not crossexamined as to the duration of the events, similarly applies to the prosecution since the prosecution did not crossexamine DW5 about the time range for cab booking. Ld counsel referred to Section 138 of the Evidence Act and the case of Ravindra Kumar Sharma (supra) to FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 153/161 contend that generally speaking, when crossexamining, a party's counsel should put to each of his opponent's witnesses, in turn, so much of his own case as concerns that particular witness or in which he had a share. Ld counsel referred the case of State of U.P v. Nahar Singh (supra) that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, if has been objected to by the other part as being untrue. Without this, it is not possible to impeach his credibility.

The above proposition of law is well accepted but on going through the evidence, I find that whatever DW5 has stated in his testimony as to the time taken for booking the MERU cab till the booking is registered with the server is his own assumption and is not based on a fact. It cannot be lost sight that an assumption is always subject to question. Thus not putting this in the cross examination by the prosecution does not mean that the prosecution has accepted what DW5 has stated as to the range of time booking from 60 seconds to 2 minutes. In the instant case, the defence witnesses have been crossexamined on each and every material point. Further the prosecution has established its case from its own evidence and did not take the aid of the defence witnesses. The prosecution evidence is very cogent and consistent with regard to the happening of incident of rape within the given time frame and the absence of Ashish and Roomi at the time of the incident, which case the defence tried to negate by taking the support of PW12, DW3 and DW5 but did not succeed.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 154/161 J. Conversation regarding the emails sent by the prosecutrix on 12.04.2015 and 13.04.2015 between Anusha Rizvi, wife of the accused and the prosecutrix.

In the instant case, the prosecutrix had sent email to the accused on 12.04.2015 expressing her anguish. She in that email reiterated how she was sexually assaulted. The said email was answered by Anusha Rizvi, wife of the accused who replied that she was deeply disturbed by her email. She also advised her to report the matter to the authorities if she wished. She told her that she could not confront the accused with this email since he is in rehab due to bipolar disorder. She does not know how and when it would be appropriate to speak to him. The prosecutrix immediately reacted to her email and sent another email on 13.04.2015 telling Anusha not to blame his act on his bipolar condition. Anusha then clarified that the reason she mentioned bipolar is because she did not have access to the accused. Ld counsel for the prosecutrix contended that it is strange that the wife of the accused despite knowing all this did not communicate the same with the accused though the call details record show that Anusha and the accused talked for long everyday when the accused was in rehab. The explanation given by the accused that his wife told him about the emails only in June, 2015 does not carry any significance. Strangely, Anusha did not express even an iota of surprise on reading her emails describing how her husband forced oral sex on her. This leads to an inference that she was well aware of the accused's behaviour particularly in matters related to his sexual conduct. No reasonable or respectable person FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 155/161 nor his wife would remain silent if a false allegation of rape is made by a woman via email against her husband. The silence, apology and admission only imply that the accused and Anusha both knew that the accused had committed forced oral sex upon the prosecutrix. Subsequent actions of Anusha Rizvi and the accused upon learning about the registration of FIR as reflected in the CDRs revealed their true colours. They were indifferent to the prosecutrix's traumatic cries of rape. Since the prosecutrix had gone to USA, they assumed that there would be no legal consequences against the accused for raping the prosecutrix. Ld counsel for the accused on the contrary argued that Anusha is highly educated. She has written articles on the issue of women. She never asked the prosecutrix not to take action for the wrong. Ld counsel stated that she did not find it appropriate to tell the accused about the emails since the accused had been suffering from bipolar disorder and was in rehab. Her father was in the hospital. He died on 24.05.2015. She told the accused in June, 2015 only. She deleted the email dated 12.04.2015 from the laptop of the accused. It cannot be inferred that she did not complain to the accused on the emails. Further nothing can be inferred that after the emails, she did not seek explanation from the accused. Ld counsel stated that the explanation given by the accused satisfied her that he is not guilty and that the allegations are false. It is seen from the replies made by Anusha Rizvi to the emails that she had advised the prosecutrix to take appropriate action and she also showed her sympathy with her as to the incident but it is not to be believed as stated by the accused in his FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 156/161 statement under section 313 CrPC that Anusha had informed him in June, 2015 only, since, before that they had a difficult time since he was in rehab and her father was hospitalized and thereafter expired. The CDR shows that when the accused was in rehab, there had been daily conversations between Anusha Rizvi and the accused. The explanation given by the accused that he did not have access to the emails since his wife had deleted the emails, does not inspire confidence. It is impossible to believe that Anusha on the one hand had advised the prosecutrix to take action and also showed sympathy while on the other hand she deleted the said emails and had not questioned her husband regarding the same.

54. TO SUM UP, in the instant case, the evidence of the prosecutrix is of sterling quality. It is consistent and credible. Her evidence has been corroborated in all material particulars by PW10, PW11 as well as by independent record comprising of emails, SMS, Whatsapp communications as well as CDRs. Her demeanor shows her to be a honest and truthful witness. There is no improvement, embellishments and exaggerations in her testimony. The minor and immaterial discrepancies have no bearing in this case. I find no reason to disbelieve the prosecutrix that she was raped by the accused in the time frame as described by me above when Ashish PW12 had left the house of the accused. She had informed PW10 Danish that things were not right with her in the house of the accused and she needed to urgently speak with him as soon as she exited the house of the accused. As soon as she left and got into the taxi, she called PW10 and narrated him that the accused raped her. She also described the sexual assault to him.

FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 157/161 No adverse inference can be drawn against PW10 for not raising the issue with the accused particularly given the sensitive and awkward nature of the subject. Rather his conduct is exemplary and shows great respect for the prosecutrix's privacy and well being. The testimony of PW12 as to his presence at 10.00 p.m in the house of the accused does not inspire confidence. He attempted to show that before her departure, the prosecutrix was normal. It is not possible that in the midst of their telephone calls, cab bookings, cancellation as well as Whatsapp conversation, the prosecutrix had any conversation with Ashish and Roomi on Gorakhpur. The testimony of DW3 Darrain and DW1 do not help the accused as to the commission of the offence. DW3 attempted to portray that the accused was not in intoxicated condition and he did not need to be taken care of. He said hello to the prosecutrix only though the accused allegedly told him that Ashish and Roomi were in his house. In the instant case, the prosecutrix did not leave the house of the accused seeing his intoxicated condition since she had seen him in this condition on previous occasions which did not alarm her. She never expected the accused to sexually assault or harm her. She did not have any motive to falsely implicate the accused. The law laid down in the cases referred by the defence counsel have already been discussed in detail in the preceding paras and need not be discussed separately.

It is well settled law that in a case of rape, the sole testimony of the victim is sufficient to establish the guilt of the accused and no corroboration is required. The evidence of the victim of sexual assault cannot be tested with suspicion as that of FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 158/161 an accomplice. The Supreme Court in Radhu v. State of Madhya Pradesh 2007 Crl.L.J. 4704 succinctly laid down the principles thus: "It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. "

It is well settled law that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical scientific evidence.

It was held in State of UP v. M. K. Anthony, AIR 1985 SC 48 as follows: "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 159/161 here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Crossexamination is an unequal dual between a rustic and refined lawyer."

Nevertheless in a criminal trial prosecution has to prove its case beyond reasonable doubt but the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth to constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantive, should not be mere vague apprehensions. A fair doubt is based upon decision of common sense. In Sucha Singh and another v. State of Punjab J.T.2003(6) SC 248 it has been ruled that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. It was also reiterated in Gurbachan Singh v. Satpal Singh and others AIR 1990 SC 209. In case State of U.P v. Ashok Kumar Srivastava AIR 1992 SC 840 it was held that prosecution is not required to meet any and every hypothesis put forward by the accused.

CONCLUSION

55. In the light of above observations and findings, it can be FIR No. : 273/15 PS : New Friends Colony State v. Mahmood Farooqui Page No. 160/161 safely held that the testimony of the prosecutrix being truthful and credible can be relied upon as being of sterling worth for the purpose of the conviction of the accused. It was when the prosecutrix was alone with the accused, Ashish was away from his house, it was confirmed that Darrain was not coming to his house, the accused taking advantage of the situation raped the prosecutrix. The subsequent conduct of the prosecutrix of wanting to disassociate herself from the accused and to leave his house immediately and telling about her ordeal to PW10 Danish so also her email dated 30.03.2015 and 12.04.2015 to the accused and his reply dated 30.03.2015 thereto clinches the case of the prosecution. There is no reason observed for the prosecutrix to falsely implicate the accused. Also the delay in lodging the FIR has been satisfactorily explained. Thus, I find no hesitation in concluding that the prosecution has proved the guilt of the accused beyond reasonable doubt qua the charge of rape framed against him. I accordingly hold the accused guilty of the offence of rape punishable under section 376 IPC and convict him thereunder.

         Announced in open court                                     ( Sanjiv Jain)
         on 30.07.2016.                                       ASJ(SPL, FTC):SE
                                                                    NEW DELHI.




FIR No. : 273/15
PS : New Friends Colony
State v. Mahmood Farooqui                                          Page No. 161/161
 FIR No. : 273/15
PS : New Friends Colony
State v. Mahmood Farooqui   Page No. 162/161

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4.2015 vs Unknown on 30 July, 2016