Delhi District Court
Complainant vs Khwaja Afzal Nizami on 29 April, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0275282015
SC No. : 143/15 and 2293/16
FIR No. : 280/15
U/s. : 376/328/420/506 IPC
PS : H N Din
State (Govt. of NCT of Delhi)
................... Complainant
Versus
1. Khwaja Afzal Nizami
S/o Late Syed Afzal Nizami
R/o H. No. 89, Ground Floor,
Basti Nizamuddin, Delhi. ....................Accused persons
Date of Institution : 09.12.2015
Judgment reserved for orders : 29.04.2017
Date of pronouncement : 29.04.2017
JUDGMENT
Facts:
1. The case of the prosecution is that the prosecutrix ( name withheld to protect her identity) was a divorcee. She was aged about 39 years. Her father lived in Mumbai. In July, 2010, she was very upset since she lost her job. She went to Hazrat Nizamuddin Shrine to offer prayer. There she met the accused Peer Khwaja Afzal Nizami. He took her in his office and asked about her problem. He told her that he would do prayer for her and she would have to come in his office daily in the evening for some days. Since July, 2012 she started going to his office at 8.00 p.m State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 1 /12 daily. The accused used to give her tabeez dipped in a glass of water and ask her to drink it daily. The accused used to chant mantras on her head and make her sit in his office till late hours.
Slowly and gradually, by taking water, she lost her senses/memories. On 31.07.2012 when she reached his office at about 8.00 p.m, the accused gave her water after dipping tabeez. She started losing her senses. The accused told her that all her problems would be solved if she marries him. Since she was not in complete sense, she gave her consent for the marriage. The accused called 34 persons already sitting there to perform their false marriage ceremony. Her signatures and thumb impressions were obtained on some papers and a false marriage certificate was prepared. The accused also took her photographs in objectionable position. He took her to her house in an auto and expressed his desire to sleep in her house at Munirka but she refused.
2. It is further the case of the prosecution that between 01.08.2012 to 09.08.2012, the prosecutrix repeatedly asked the accused to give her the marriage certificate or its photocopy but the accused avoided and told her that her marriage with him is legal and genuine. On 09.08.2012, the accused after making her believe that she is his legally wedded wife committed sexual intercourse with her forcibly in her house at Munirka after giving water making her unconscious and physically weak. Next morning, when he left her house, he gave her Rs.2.0 Lacs to purchase a car. He repeatedly raped her in her house at odd hours and whenever she told the accused that she would lodge complaint with the police, he deposited money in her account and met other expenses.
State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 2 /12 He thereafter asked her to shift in a house at Jangpura which he arranged on rent. Although she refused but he threatened her to defame. In June, 2013, the accused gave her water and shifted her in Jangpura Extension. He started coming there. Whenever she asked him to leave, he created scene in front of her neighbours giving threats that he would commit suicide and after his death, police would arrest her.
3. It is further the case of the prosecution that the accused stopped paying her. She was put on road. On 29.11.2014, the family members of the accused came to know of their marriage. Azmal, son of the accused Khwaja, removed the original Marriage Certificate from the almirah and destroyed it. On the same day at 11.40 p.m, he sent her a threatening message. According to the prosecutrix, she never changed her name nor adopted Islam. She is Christine by birth and still Christine. The accused Afzal committed rape upon her under the influence of jadutona and tabeez after making her believe that her marriage is a valid legal marriage although she was not lawfully married to the accused since the accused has his wife and children living. He cheated her by entering the mehar amount as Rs.5,000/ instead of Rs.50.0 lacs as was stated.
Investigation
4. The case was registered on the directions of the Court on the complaint of the prosecutrix u/s 156(3) CrPC on 17.04.2015. The prosecutrix was got medically examined at AIIMS on 07.05.2015. Her statement u/s 164 CrPC was got recorded wherein she reiterated the allegations made in the complaint. She alleged State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 3 /12 that the accused also sent her threatening messages. The accused was got medically examined. He was found capable of performing sexual intercourse under normal circumstances. Statement of Qazi who had allegedly performed their marriage was recorded. He verified the Nikahnama. The witnesses to the marriage namely Izrahul Haq and Mohd. Gaus were examined. Investigation revealed that the Superintendent Radha Charan in August, 2012 had attested the affidavit of the prosecutrix. He told the investigating officer that his staff/advocate had presented the documents and he attested them due to heavy work load. The record of the SDM office was verified but no such entry was found. After the investigation, accused persons Khwaja Afzal Nizami and Sayed Azmal Nizami were sent for trial for the offences punishable u/s 328/376/506 IPC.
5. After complying with the requirements contemplated under section 207 CrPC, the case was committed to this Court. Charge
6. Vide detailed order dated 22.04.2017, prima facie case was made out against the accused Khwaja Afzal Nizami for the offences punishable u/s 328/376/420/506 IPC. Accused Sayed Azmal Nizami was discharged of the offences. The charge was framed against the accused Khwaja Afzal Nizami. He pleaded not guilty and claimed trial.
Prosecution Evidence
7. To substantiate its allegations against the accused Khwaja Afzal Nizami, the prosecution examined as many as four witnesses.
State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 4 /12 PW1/prosecutrix testified on oath that her first marriage took place in 1996. She took divorce from her husband in 2003. Her father lives in Mumbai. Her mother lives with her brother in Delhi at Munirka, Delhi. She used to live with her mother at Munirka. In July 2012, she went to Hazrat Nizamuddin Dargah where she met the accused Khwaja Afzal Nizami. She was in need of a job. The accused told her that he would pray for her job. She started going there. She used to go there in the afternoon. He used to do prayer for her. He thereafter asked her to marry him. She then did nikah with him in 2012 with her consent vide Nikahnama Ex.PW1/A bearing her signature and photograph. The accused also signed on the Nikahnama. She stated that before doing Nikah, she changed her religion from Christian to Islam and also changed her name. In that respect, she executed an affidavit Ex.PW1/B. She stated that she and the accused started living together. First of all, they lived in the flat at Munirka i.e. in the flat of her mother for six months. He thereafter shifted her in the house at Jungpura i.e. 2/35, double storey, Jungpura Extn., New Delhi. She stated that during their stay at Munirka and Jungpura Extn., they had physical relations and their relations were consensual. She stated that the State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 5 /12 accused thereafter stopped coming to her and said that he does not consider their marriage as a valid marriage. He also stopped bearing her expenses. She contacted his son Sayed Ajmal in this regard but he refused to intervene in their matter. In anger, on 13.12.2014, she made the complaint Ex. PW1/C after taking legal advise. She stated that on 07.05.2015, she was taken to AIIMS where she was medically examined vide MLC Ex.PW1/D. She stated that the doctor did not ask anything from her. On 08.05.2015, she was taken to the Court where her statement Ex. PW1/E was recorded. She stated that since at that time, she did not find any change in the behaviour of the accused, she made the statement on the lines of her complaint Ex.PW1/C. She stated that she was also under depression and anger since the accused was not living with her nor was bearing her daily needs. She stated that now, their dispute has been resolved. A compromise Ex. PW1/F has been entered into and the accused has given talaq to her by oral pronouncement in the presence of two witnesses. He also paid her mehar and alimony. She stated that it was also agreed that the accused would withdraw his case pending before the Family Court regarding restitution of conjugal rights. She stated that now, she has no relation State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 6 /12 with the accused.
She was declared hostile by the prosecution but nothing favouring the prosecution came from her mouth. She denied that during her visits to his office, he gave her Tabeez dipped in water and the accused used to give water to drink. She also denied that slowly, she started losing her memory and the accused used to make her sit in his office for late hours and whenever she wanted to leave his office, he did not allow her to go home. She denied that on 31.07.2012, the accused made her drink water mixed with tabeez and she lost her consciousness and agreed to marry with him. She denied that the accused used to force her to take water mixed with tabeez to make her unconscious and thereafter he used to commit rape upon her. She denied that she wanted to report the matter to the police but the accused threatened her to defame and kill. She denied that the accused used to visit her at Jungpura at mid night and rape her, saying that she is his wife and he has every right to have sexual intercourse with her. She denied that the accused performed a false marriage with her. She denied that her complaint Ex.PW1/C and statement Ex. PW 1/E were voluntary.
PW2 Iftekhar Alam was the Qazi at State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 7 /12 Nizamuddin Dargah. He stated that on 01.08.2012, accused Khwaja Afzal Nizami, came to him with the prosecutrix. She told him that she has converted her religion from Christian to Islam. She gave him affidavit Ex.PW1/B. She also gave him her consent for her nikah with the accused. He stated that he performed the nikah of the accused with the prosecutrix as per Muslim rites and customs. The mehar was fixed as Rs. 5,000/. A Nikahnama Ex.PW1/A was executed. Both the of them signed on the Nikahnama in the presence of the witnesses. He stated that he had ascertained the voluntariness of the accused and the prosecutrix before performing nikah. PW3 Izharul Haq was the witness to their Nikahnama EXPW1/A. He deposed on the lines of PW2. He stated that both the prosecutrix and the accused were looking normal when they signed the Nikahnama.
PW4 Inspector Sushma on receipt of complaint, Ex.PW1/C, prepared the rukka Ex.PW4/A and got the FIR Ex.PW4/B registered. On 07.05.2015, she got the prosecutrix medically examined vide MLC Ex.PW1/D. On 08.05.2015, she got her statementEx.PW1/E recorded from the Magistrate. She thereafter handed over investigation to SI Satender Gulia.
State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 8 /12
8. The essence of rape is the absence of consent. The consent means an intelligent and 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.
9. Perusal of the testimony of PW1/prosecutrix would show that she had already divorced her husband when she came in contact with the accused. She used to live with her family in a flat at Munirka. She was in need of a job. In July, 2012, she went to Hazrat Nizamuddin Dargah and met the accused. She discussed her problem with the accused who told her that he would do prayer for her. She started going there almost daily. The accused thereafter proposed her for marriage which she agreed. They did their nikah in the same year. Before doing nikah, she changed her religion from Christian to Islam and in that respect, she executed an affidavit Ex. PW 1/B. PW2 was the Qazi who performed their nikah. He has stated that on 01.08.2012, the accused came with the prosecutrix. After ascertaining their voluntariness, he performed their nikah as per Muslim Rites and Customs. He stated that both prosecutrix and the accused signed on the Nikahnama Ex. PW 1/A which also bears their photographs. He stated that mehar of Rs.5,000/ was fixed and it was entered in the Nikahnama. PW3 had witnessed their nikah. He stated that both the prosecutrix and the accused were normal when they signed the Nikahnama Ex. PW1/A. State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 9 /12
10. Testimony of PW1/prosecutrix shows that after doing nikah, they lived together in the flat at Munirka and Jungpura Extension. During their stay, they made physical relations. She has stated that their physical relations were consensual. She has categorically denied that the accused gave her tabeez dipped in the water, as a result, she lost her memory and consciousness and agreed to marry with the accused. She also denied that the accused forced her to drink water in which tabeez was dipped. She stated that her marriage with the accused was voluntary and the accused never forced upon her.
11. Testimony of PW1/prosecutrix further shows that when the accused stopped coming to her, bearing her expenses and he told her that he does not consider their marriage as a valid marriage, she contacted his son Sayed Azmal but he refused to intervene in their matter. This enraged her. She thereafter took legal advice and made the complaint Ex. PW1/C. She denied that she narrated the history of incident to the doctor. She stated that she gave the statement Ex. PW1/E in anger since she did not find change in the behaviour of the accused who had refused to keep her and bear her expenses. She then referred the compromise Ex. PW 1/F entered between them. She stated that now the accused has divorced her and he has also undertaken to withdraw the case filed by him for restitution of conjugal rights. She stated that now she has no relation with the accused.
12. The testimony of the prosecutrix is very categorical to the facts that accused never intoxicated her nor forced her to change her religion from Christian to Islam nor induced/forced her to State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 10 /12 marry him, rather she had willingly married to the accused. As regards her mehar amount, PW2 has stated that Rs.5,000/ was fixed as mehar amount and it was entered in the Nikahnama Ex. PW 1/A. The prosecutrix did not give any evidence that Rs.50.0 lacs was fixed as mehar when she signed on the Nikahnama Ex. PW 1/A. There is no evidence to show that the accused cheated and dishonestly induced the prosecutrix to marry him or that he entered the mehar amount as Rs.5,000/ as against Rs. 50.0 lacs in the Nikahnama Ex. PW 1/A. PW3 has stated that when the prosecutrix and the accused signed on the Nikahnama, they were looking normal. PW2 has stated that he had ascertained the voluntariness of both of them before performing their nikah. Testimony of PW1 shows that the accused never forced upon her and whenever they made physical relations, they were consensual. There is no evidence to show that the accused at any time criminally intimidated the prosecutrix/PW1 or created scene in front of her neighbours that he would commit suicide or after his death, the police would arrest her or that on 29.04.2014, he sent her a threatening message.
13. Looking into the testimony of the prosecutrix and other witnesses who did not say anything incriminating against the accused, I did not find any purpose to examine the remaining prosecution witnesses as their testimony even if unrebutted would not become the basis of the conviction of the accused. Prosecution Evidence was accordingly closed. Since no incriminating evidence came on record against the accused, his statement u/s 313 CrPC was dispensed with.
State v. Khwaja Afzal Nizami FIR No. 280/15 P.S H N Din Page No. 11 /12 Conclusion
14. In the light of above discussions, I am of the view that necessary ingredients of the offences punishable u/s 328/376/420/506 with which the accused was charged are not proved against him. I therefore acquit the accused of the offences punishable u/s 328/376/420/506 IPC. His bail bond be cancelled. His surety be discharged. He is, however, directed to furnish bail bond in the sum of Rs.25,000/ with one surety of the like amount in compliance of Section 437A CrPC.
15. File be consigned to the Record Room.
Announced in the open court ( Sanjiv Jain) on 29.04.2017. ASJSpl.FTC/ Saket Courts New Delhi.
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