Delhi District Court
State vs : Nafis Beg on 21 March, 2011
IN THE COURT OF SH. R.B. SINGH, ASJ 03, (OUTER)
ROHINI COURTS, DELHI
SC No. : 124/08
FIR No. : 470/05
PS : Hari Nagar
U/S : 366/376/328/506 IPC
State Versus : Nafis Beg
S/o Rahis
R/o WZ-94 A,
Tihar Village, Delhi
Date of Institution of the case : 04.10.2005
Date of Decision of the case : 21.03.2011
JUDGMENT
1. Briefly stated, the prosecution case is that on 08.08.2005 at about 1.00 pm at Tihar Bus stand the accused Nafis Beg administered stupefying handkerchief to Shilpi Puri with intention to facilitate the commission of offence of rape with her and thus committed an offence punishable under sections 328 of IPC within the cognizance to this court.
Further, on 08.08.2005 at about 1.00 pm, the accused administered the stupefying handkerchief to Shilpi Puri and thereafter, took her to one room at the nearby place and committed rape on her on the same day and two days thereafter also and thus committed offence punishable U/s 376 IPC and within the cognizance of this Court.
Further, on the aforesaid date, time and place the accused abducted Shilpi Puri with the intention that she may be compelled to marry him or she will be seduced to illicit intercourse with him SC No. 124/08 Page No. 1/37 and thus committed offence punishable U/s 366 IPC and within the cognizance of this Court.
Even, further on the aforesaid date, time and place the accused criminally intimidated Shilpi Puri and also compelled her to marry him and thus committed offence punishable U/s 506 of the IPC and within the cognizance of this Court. With these allegations, the accused was sent for trial.
2. After committal of the case to the Court of Sessions and after hearing the arguments from the Ld. Counsel for the accused and Ld. Addl. P. P. for the State, charge U/s 328/376/366/506 of the IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. In support of the case, the prosecution has examined 12 prosecution witnesses. The accused has also led evidence in his defence and has examined 05 witnesses in his defence.
4. The accused was examined U/s 313 of Cr. PC and all the material evidences against him was put to him and he has denied the same as false and submitted that he is an innocent person, have been falsely implicated in this case by the police in connivance with the parents of the Prosecutrix. He has also led evidence in his defence and has examined five witnesses in defence.
5. Ld. Counsel for the accused has submitted that the accused and the Prosecutrix were neighbours and were in love SC No. 124/08 Page No. 2/37 with each other and wanted to marry. The accused is a muslim by religion and the Prosecutrix is a Hindu by religion and hence, the parents of the Prosecutrix were against this relationship and were not ready to marry the Prosecutrix with the accused. Hence, the Prosecutrix decided to elope with the accused and to marry him secretly and without the knowledge of her parents. The Prosecutrix in the process of the preparation of the documents required for the aforesaid marriage, executed two affidavits on 02.08.2005 before the Notary Public in the Tis Hazari Courts-one affidavit for the purpose of her conversion from Hindu to Muslim and another for the purpose of marriage. The accused also executed an Affidavit for the purpose of this marriage. On 08.08.2005 the Prosecutrix eloped with the accused in order to marry him and both of them approached a lawyer i.e. Mr. Arora in Tis Hazari Courts who suggested them to approach some Qazi in order to conduct the conversion of the Prosecutrix and thereafter, to conduct a Nikah. Hence, both of them approached Maulana Qazi Riazuddin Amini. The Prosecutrix wrote two statement in her own handwriting one in Hindi and one in English expressing her will to convert and marry the accuse and presented those statements to the aforesaid Qazi and the Qazi conducted the conversion and the Nikah and gave the Prosecutrix a new muslim name Shaheena Beg and issued two documents in this regard-one conversion certificate and one Nikah nama.
The Prosecutrix and the accused were afraid of the parents of the Prosecutrix, and they again approached the SC No. 124/08 Page No. 3/37 aforesaid lawyer i.e. Mr. Arora along with aforesaid documents on 09.08.2005 and the Prosecutrix filed a case of permanent injunction against her parents and brother and the same was listed for hearing before the Hon'ble Civil Judge Sh. Shailender Malik in Tis Hazari Court at 2.00 pm on 10.08.2005. The accused and the Prosecutrix were not knowing that a FIR has been lodged against the accused, they came to attend the aforesaid case on 10.08.2005 in Tis Hazari Courts but somebody informed the parents of the Prosecutrix and her father alongwith a police party reached there and arrested the accused and took away the Prosecutrix. After meeting her parents, the Prosecutrix either under the pressure or as a result of the persuasion of her parents gave a false statement against the accused under section 164 Cr. PC and falsely implicated the accused and even deposed falsely before the Hon'ble Court. On 04.10.2005 the Prosecutrix along with her father and the IO of the case appeared before the Hon'ble Court of Sh. Shailender Malik and withdrew the suit of the permanent injunction. It is, therefore, prayed that since the Prosecutrix was a major and consenting party, the accused may be acquitted of the alleged charges. Ld. Counsel for the accused has also relied upon the following case laws namely:
1. Alamelu & Others V/s State (2011) SCC 385
2. State of HP V/s Narendera Kumar & Others, 2010 Cri.L.J 3545.
3. Devanand Singh V/s State of Bihar, 2010, Cri.L.J. 1839.
4. Dinesh Jaiswal V/s State of MP, 2010, Cri.L.J. 1917.SC No. 124/08 Page No. 4/37
5. Abbas Ahmed Chaudhary V/s State of Assam, 2010, Cri.L.J. 2060.
6. Jasbir Singh V/s State of Punjab 2010, Cri.L.J. 1240.
7. Kailash V/s State of Madhya Pradesh 2009, Cri.L.J. 41.
8. State of Rajasthan V/s Mohd. Sharif &Others 2009, Cri.L.J. 4527.
9. Abdul Hasan V/s State of Bihar, 2009 Cri.L.J. 3664.
10. Shahbuddin V/s State of Rajasthan 2010, Cri.L.J. (NOC) 872 Raj
11. Jagar Nath V/s State of HP 2009, Cri.L.J. (NOC)156 (HP).
12. Amrik Singh V/s State of Punjab 2009, Cri.L.J. (NOC) 1151 (Ori).
13. Om Prakash V/s State of Haryana 2008, Cri.L.J. 675.
14. Suresh Kumar V/s State of Rajasthan 2007, Cri.L.J. 1939.
15. Noor Alam V/s State of Bihar 2005, Cri.L.J. 3065.
16. Manoj Kumar Munda V/s State of Bihar 2004, Cri.L.J. 3431.
17. Chand V/s State of Haryana J2002 Cri.L.J. 752.
18. Nand Kishore V/s State of Rajasthan, 2002, Cri.L.J. 4157.
19. Eta Singh V/s State of Bihar, 2002 Cri.L.J. 4413
20. Kasan V/s State of Rajasthan, 2002, Cri.L.J. 1460.
21. Mohan V/s State of Rajasthan, 2002 Cri.L.J. 3438.
22. Suresh Kumar V/s State of HP, 2002 Cri.L.J. 498.
23. State of Rajasthan V/s Munsi, 2001 Cri.L.J. 2756.
24. Suresh Babu V/s State of Kerala, 2001, Cri.L.J. 1483.
SC No. 124/08 Page No. 5/3725. Raj Kumar V/s State, 1996, Cri.L.J. 1829.
26. Anmol V/s State of Maharashtra, 1999, Cri.L.J. 4239.
27. Shyam V/s State of Maharashtra, AIR 1995 Supreme Court 2169.
28. State of H.P. V/s Dharam Dass, 1992 Cri.L.J. 4239.
29. M.P. Poonama V/s State of Karnataka, 1978, Cri.L.J. 1221.
30. Madho Ram V/s State of UP, 1973 Cri.L.J. 673 (V 79 C 2005).
31. Ram Kishan Singh V/s Harmit Kaur AIR 1972 S. C. 468 and I have perused the same also.
6. On the contrary, Ld. Addl.P.P. for the State has submitted that the Prosecution has successfully established its case against the accused Nafis Beg beyond shadow of doubt and the lacunae, if any, is not fatal to the case of the Prosecution. Hence, it is, prayed that the accused may be convicted for the alleged offences.
7. I have heard Ld. Counsel for the accused, Ld. Addl. P. P. for the State and have perused the entire material on record carefully including the case laws cited on behalf of the accused.
8. On the careful scrutiny of the testimony of the witnesses reveals that PW1-Shilpi Puri has deposed that she is a student of BA, 2nd Year, in Bharti College, Janak Puri. She has one sister and one elder brother. Her elder sister is married and brother is SC No. 124/08 Page No. 6/37 working in Maruti Udyog Limited. She was doing the course of Computer designing. She used to go at about 11-11.15 am and used to come back at about 1-1.15 pm from her Computer center. On 18.08.2005 she went to attend the aforesaid course classes as usual and when she was coming back at about 1.15 pm and had alighted from the bus at Tihar bus stand and was proceedings towards her house, she heard that somebody was calling her by name and when she turned she saw that accused present in the court (correctly identified by the witness) was standing near an auto rickshaw. He came near her and put a handkerchief on her nose due to which she lost her consciousness. He took her in the auto rickshaw, when she regained her consciousness on next day, she found herself in a room which was having a window also. She felt greatly tired and also realized that some wrong act done to a girl had been done to her. When she asked the accused to leave her to his house, he tortured her and compelled her to marry him. He threatened her to kill her parents and brother in case she did not agree to marry him. When she tried to raise an alarm, he again put a cloth on her face due to which she again lost her consciousness. Next day, when she regained consciousness, the accused asked her to accompany him to the Court for the purpose of marriage. She got scared. The accused, however, forcibly took her to Tis Hazari Courts for the said purpose. She did not know anything about courts at that time. In Tis Hazari Courts when she found herself at first or second floor and surrounded by public persons and police officials. She mustered courage and raised a SC No. 124/08 Page No. 7/37 noise and sought help from the persons present there. As a result of that, accused present in the court was caught hold by the public persons and handed over to the police. She was made to sit in a TSR at bus stand, Central Jail Tihar, she saw her father with the police present there. She alighted from the TSR and told all what had happened to her to her father and police officials. Her statement was recorded by the police. Thereafter, she was allowed to join the company of her parents and a memo was prepared by the police Ex. PW1/A which bears her signature at point A. She was medically examined at DDU hospital where she was taken by the lady police official. Police had brought her to Tis Hazari Courts where her statement was recorded by Ld. MM. She identified her signature on statement Ex. PW1/B at point A. The place where the accused had taken her had kept her there for two days. He had raped her thrice during the period he had kept her there in the room. She had noticed that she was not having cloths on her lower part of the body.
She has also deposed in her cross examination that she had joined the coaching institute about a year before the day of incident. At that time, she was doing first year of BA and simultaneously she joined the coaching institute. She usually used to go by rickshaw which she used to take from Tihar Jail bus stand. She used to reach bus stand in 4-5 minutes by foot. The coaching institute used to be opened from Monday to Friday. Rajni Sharma, a friend of her used to accompany her in rickshaw. While returning she used to come with her friends but she used to SC No. 124/08 Page No. 8/37 get down earlier as her house fell earlier to her house and then she used to remain alone at the rickshaw.
She was alone when the incident had happened with her as her friends had got down earlier. She had no relationships with the accused, though she was knowing him as he was residing in the same locality. The accused had followed her once or twice earlier also regarding which she complaint to her parents. No complaint was lodged by her parents in the PS in this regard, though they had gone to his house to tell him to behave properly. It is wrong to suggest that she was not the student of any coaching institute. Few people were coming and going at that time but she had no occasion to understand as to what was happening her or to call them and those people were also not very near to her. The accused was standing just a step away from her when she looked back when he had called her. No talk had taken place between her and accused. The accused put a handkerchief on her face near the nose and she become unconscious. It is wrong to suggest that she is deposing falsely that the accused had put a handkerchief on her face near the nose and she become unconscious. It is correct that she had made a statement to the police that she had regained consciousness at 9.00 am on 09.08.2005. She told the Ld. MM about the time she got consciousness at 4.00 pm on 09.08.2005. She told the Ld. MM about the time she got consciousness at 4.00 pm but the same was the result of some confusion and she regained consciousness at 9.00 am only. It is wrong to suggest that she had deposed falsely SC No. 124/08 Page No. 9/37 in this case at the instance of her parents. She had seen two photographs shown to her by the Ld. defence counsel. After seeing the photographs, she admit that in these photographs she and accused figured. However, she does not know how this has happened. The photographs are Ex. PW1/D1 and Ex. PW1/D2. Regarding Ex. PW1/D2, she say that though the face is her but the suit shown to be wearing is not her and she does not have any such a suit with her. It is wrong to suggest that she was in love with the accused and they had planned to marry and in connection with that marriage, she had voluntarily gone with the accused on 08.08.2005. It is wrong to suggest that the photographs Ex. PW1/D1 and D2 was got photographed by her and the accused with their consent for the purpose of using the same in the marriage. She had been shown some letters total 52 pages and she had been inquired if these letter have been written by her to the accused. She replied that she had not written any letters to the accused ever. Alleged letter from pages 1 to 52 are not in her handwriting.
She had gone to the Tis Hazari Courts on 10.08.2005. It is wrong to suggest that the letter on pages 1 to 52 have been written by her and she is deliberately telling a lie in order to falsely implicated the accused and to get him punished though he has not committed any crime. It is wrong to suggest that on 02.08.2005, she had executed voluntarily two affidavits in connection to her marriage with the accused. She had been shown photocopies of two affidavits which are mark-A and B and after SC No. 124/08 Page No. 10/37 seeing the photocopy of the affidavits, she said that she did not execute these affidavits and that these does not bear her signature. She can not say if the accused had obtained her thumb impressions after she was unconscious. It is wrong to suggest that she got her religion converted from Hindu to Islam. It is wrong to suggest that in that connection, she herself wrote her statement expressing her intention to marry the accused and further certifying that the conversion had taken place voluntarily and without pressure of anyone. She say that statement Mark C and D are not her. However, her photo appears on mark C and the accused must have stolen her photo from her bag and used the same. It is wrong to suggest that she and accused had gone to Maulana Qazi Riyazuddin Amini at Ajmeri Gate, Delhi and the Maulana had issued the certificate to her certifying that she had changed her religion from Hindu to Islam. It is wrong to suggest that she had married the accused on 08.08.2005 according to Muslim rites and a Nikahnama was accordingly prepared by the Qazi and at that time, she had got her name changed from Shilpi Puri to Shahina Beg. The photo on the Nikahnama is of her and that of the accused but she does not know how this photo had been affixed on the Nikahnama. She does not know anything about the registration of Nikahnaama. The conversion certificate is Mark-E and the Nikahnama is mark F and the photocopy of the registration of Nikahnama is mark-G. These papers do not bear her signature. It is wrong to suggest that all these documents are genuine and have been prepared as per the events which had SC No. 124/08 Page No. 11/37 taken place between her and the accused and she is deliberately deposing falsely in order to see that the accused is wrongly punished. A Question was put to the witness by Ld. Defence Counsel that she had filed a Civil Suit dated 09.08.2005 against her parents, brother and SHO-PS Hari Nagar for permanent and mandatory injunction in the Court of Ld. Senior Civil Judge and the said suit was marked to Sh. S. Malik and suit had been signed by her as a plaintiff where she had mentioned her name as Shilpi Puri and Shahina Beg. She replied that she never filed any suit nor the suit contains her signature on the plaint.
It is wrong to suggest that everything had happened with her consent and she is deposing falsely. It is wrong to suggest that her statement before the police and Ld. MM were not voluntary and the same had been given at the instance of her parents and the same were false.
9. PW3-Satpal Puri has deposed that he has a fruit shop at Hari Nagar. He had one son and two daughters. His elder daughter is already married and his younger daughter namely Shilpi Puri is residing with him. On 08.08.2005, his daughter Shilpi left the house at 11 am for going to Asha Park for the computer training. Normally she used to return by about 1.00 pm but on that day, she did not return till 1.00 pm. They tried to search her but in vain. On the next day, they went to the PS and got recorded the FIR as they suspected the hand of Nafees Beg as prior to 08.08.2005 also, Shilpi used to complaint them that a boy SC No. 124/08 Page No. 12/37 named Nafees Beg used to tease and trouble her. Police obtained his signature on the FIR. The copy of the FIR is Ex. PW3/A which bears his signature at point A. On 10.08.2005 he along with police officials tried to search for his daughter. They reached to Tihar Village near a TSR stand and there his daughter alone got down from one TSR and he immediately identified her. There was no other person in the TSR. Police prepared memo about recovery of his daughter vide Ex. PW1/A which bears his signature at point B. Police recorded the statement of his daughter and his statement was also recorded. On the same day, he along with the police went to the Tis Hazari Police Post and he identified the accused Nafees Beg, present in the court (correctly identified by the witness), at the said police post and told that he was the one who used to trouble his daughter. He was arrested vide Ex. PW3/B and personal search memo Ex. 3/C, both bear his signature at point A. police recorded his statement. He handed over the Sr. Secondary School Certificate of his daughter to the police. Her date of birth recorded in the said certificate is 12.07.1986. The certificate was seized vide memo Ex. PW3/D, photocopy of the certificate is mark-A. His daughter was medically examined. On 11.08.2005 statement of his daughter U/s 161 Cr. PC was got recorded and thereafter, his daughter was set at liberty by the court she being major.
He has also deposed in his cross examination that they had complained to the parents of accused Nafees Beg regarding his conduct towards their daughter and they told them that even SC No. 124/08 Page No. 13/37 they were unhappy with his conduct and they could take any action against him. Since the matter pertained to his daughter, they did not think it appropriate to lodge any complaint with the police. Right now he does not have any paper to show that his daughter Shilpi had joined the computer classes at SMS College, Asha Park. He is 10th standard pass. He might be able to identify the hand writing of his daughter Shilpi. It is wrong to suggest that his daughter had a love affair with the accused or that she had written many letters to him. He had been shown the letters/writing 52 pages and asked if the handwriting is of his daughter and he replied that the letter and writing is not that of his daughter Shilpi. The 52 letters are collectively mark H-1 to mark H-52. He had seen the photographs affixed on document mark E and F. The photographs affixed on these documents appears to be of his daughter Shilpi but the signature on these documents are not of Shilpi, It is wrong to suggest that signature on these documents are also of Shilpi or that the writing of document mark E is also in the hand writing of his daughter. The name of his wife is Smt. Sushil Puri and that of my son is Vivek Puri. He had received one notice from the Court of Civil Judge, Tis Hazari Court after August 2005 but he does not recollect the name of the Judge. He does not know if the similar notice was also received by his son and wife also. It is correct that a suit was allegedly filed by his daughter Shilpi against his wife and son but when Shilpi appeared in the Court on 04.10.2005 she withdrew the suit and the same was dismissed as withdrawn. The suit SC No. 124/08 Page No. 14/37 number could be 303/05. The statement regarding withdrawal of the suit by Shilpi and the order passed by the Court on the said statement on 04.10.2005 are Ex. PW3/E and F. The statement made before the Court is signed by his daughter Shilpi. He could not talk to the rickshaw driver in whose TSR his daughter had come as he left the place immediately. No public person had gathered there. He can not tell the exact time when they had gone to the PP Tis Hazari but it was night time. Shilpi had got down from the TSR around 12 noon. It is wrong to suggest that Shilpi was pressurized by them for making a false statement before Ld. MM U/s 164 Cr. PC. It is wrong to suggest that he had lodged a false FIR in connivance with the police.
10. PW2-Mrs. Krishna Saxena had produced the school record of the Prosecutrix Shilpi regarding her date of birth from Govt. Girls Sr. Secondary School, Ashok Vihar and as per the school record the date of birth of the Prosecutrix is 12th July 1986. PW4-HC Maya Devi is the duty officer who has proved the the FIR Ex. PW3/A recorded by her. PW5-Ct. Rajender Singh had taken the accused to the DDU hospital for his medical examination. PW6-W/HC Celestina had joined investigation with the IO and she also took the Prosecutrix to the hospital for her medical examination. PW7-Ct. Dushyant is the MHC(M). PW8- HC Pawan Kumar had joined the investigation with the IO in this case. PW9-SI Raghubir Singh is the IO of the case who has conducted necessary investigation of the case. PW10-Dr. Rishi SC No. 124/08 Page No. 15/37 had proved the MLC No. 20517/05 of the Prosecutrix. PW11-Dr. Shashi has also proved the MLC Ex. PW11/A of the Prosecutrix. PW12 Sh. Vinod Yadav is the Ld. MM who has proved the statement of the Prosecutrix Ex. PW1/B recorded by him U/s 164 on 11.08.2005 on the basis of application Ex. PW9/A marked to him. After recording the statement Ex. PW1/B he also appended his certificate Ex. PW12/A.
11. The accused Nafees Beg has also lead evidence in his defence and has examined five witnesses in his defence.
12. DW1-Maulana Qazi Riazuddin Amini had deposed that the accused Nafees Beg present in the Court today along with a girl named Shilpi Puri whose new name is Shahana came to him on 08.08.2005. They expressed their desire to marry each other through Nikah. He inquired both of them whether they are marrying each other voluntarily and consciously. They replied in affirmative. He requested both of them to submit affidavits of age proof. He told to both of them that both of them are not Muslims and hence as per Shariyat unless both of them are Muslims they can not marry each other and also told them for marrying each other both of them need to be Muslims. Therefore, the girl Shilpi Puri expressed her desire voluntarily and consciously to convert to Muslim religion. Accused Nafis Beg and girl Shilpi Puri submitted their respective affidavits with regard to their age proof and intention to marry each other. He has brought those both the SC No. 124/08 Page No. 16/37 original affidavits dated 02.08.2005 and submit before the Hon'ble Court which are Ex. DW1/A and DW1/B both dated 02.08.2005. The accused Nafis Beg put his thumb impression on DW1/A at point 1 and point 2 in front of him. The girl Shilpi Puri put her thumb impression on DW1/B at point 1 and point 2. In addition to these two affidavits the girl Shilpi Puri submitted another affidavit also with regard to her desire to convert to Muslim Religion from Hindu Religion voluntarily. He has brought the same original affidavit which is Ex. DW1/C dated 02.08.2005. Shilpi Puri put her thumb impression on Ex. DW1/C at point 1 and point 2 in front of his eyes. Shilpi Puri wrote another two statement in her own handwriting in his register with regard to her intention to convert to Muslim religion and adopt a new name i.e. Shaeena Beg and to marry with accused Nafis Beg as per Shariyat. He has brought the original register. The photocopies of both the statements are already Marked and now Ex. As DW1/D and DW1/E both dated 08.08.2005. (Original seen and returned). Shilpi Puri put her photograph and signed over as Shilpi Puri/Shahana Beg and put her thumb impression at point 1 & 2 respectively on Ex. DW1/E dated 08.08.2005. After that he conducted the conversion ceremony of girl Shilpi Puri and converted her to Muslim religion as per Shariyat and issued a conversion certificate Ex. DW1/F dated 08.08.2005 and gave her the new name Shahana Beg pasted her photograph and put her signature on it at point 1 and signed the certificate at point 2 on Ex. DW1/F dated 08.08.2005 in front of his eyes voluntarily SC No. 124/08 Page No. 17/37 and consciously. He put his signature on the certificate at point 3. After the conversion he got both of them read Kalma. Thereafter, he conducted the Nikah of both Nafees Beg and Shaheena Beg with each other as per Shariyat and declared them as husband and wife. The original Nikahnama is Ex. DW1/G dated 08.08.2005. Shaheena Beg and Nafees Beg put their photographs and signed over them at point 1 and 2 and signed a marriage certificate at point 3 & 4. He put his signature at point 5 at Ex. DW1/G dated 08.08.2005. The Nikah was conducted in the presence of two witnesses namely Vakeel-a-Nikah Mohd. Fazil and witnesses Mohd. Faruk and Mohd. Irshad, and all the three witnesses signed at point 5, 6 & 7. The Nikah was entered on their free will and voluntarily. He handed over the original conversion certificate and Nikahnama to bride and groom and wished them a happy married life. He identified his signature as well as the signatures of witnesses and the Vakeel and both bride and groom on Ex. DW1/G dated 08.08.2005. The Nikahnama is in Urdu and it consists the names and father's name of bride and groom and all the witnesses and the amount of Mehar being Rs. 50,000/-. He had brought the original Nikah register where in the names of accused Nafees Beg and the girl Shahana are written and the photocopy is already on record as Ex. DW1/H dated 08.08.2005 and the entry no. of the Nikah in the register is 1071. (Original seen and returned) Both bride and groom put their photographs and signed over them at point 1 & 2 and signed and put their thumb impression below the entry of this register at point 3 and SC No. 124/08 Page No. 18/37
4. Mohd Fazil Vakeel-a-Nikah and two witnesses namely Mohd Farukh and Mohd Irshad also put their signatures at point 5,6 & 7 on Ex. DW1/H dated 08.08.2005. the girl Shilpi Puri had submitted to him her Senior School Certificate 2004 of the school Ashok Nagar Delhi as her age proof and put her signature in front of his eyes on the photocopy. He had brought the same and submit before the Hon'ble court and the same is Ex. DW1/I signed dated 08.08.2005 by Shilpi Puri/Shaheena Beg at point 1. The boy and the girl Shahana Beg were totally in their conscious state of mind during all the above said marriage and conversion proceedings and participated in these voluntarily and willingly without any force and compulsion.
He has also deposed in his cross examination by Ld. Addl. P. P. for the State that there are Ayates in the Shariya in the Kuran Sharif in the second PARA. There are 30 Paras in Kuran Sharif. It is correct that in the second Para it is written if both are not muslim they can not marry each other. It is written in the Fikaha-e-Islami-Hadish that if any of the person for marriage in non-muslim the said person required to be converted into Muslim religion. It is correct that the Affidavit given by Shilpi it is not mentioned that she is also enclosing her date of birth certificate of CBSE. It is correct that on the affidavit dated 02.08.2005 of Shilpi Puri the word @ Shana is mentioned above on the line but the same has not been signed by Shilpi Puri at the said place. It is correct that before the conversion to the Muslim religion by any religious ceremony the girl Shilpi Puri had already adopted her SC No. 124/08 Page No. 19/37 muslim name on dated 02.08.2005. It is correct that he does not know the meaning of Spinda relation. He also does not know if the Spinda relation prevalent in Hindu religion. It is correct that on 02.08.2005 in the affidavit the girl has not mentioned that she is a Hindu. He is not conversant with the language English and he only know Arabic and Urdu and he know little Hindi also. It is correct that Ex. PW1/D is written in English. It is correct that word Hindu is not mentioned in Ex. DW1/B and the meaning of Spinda he does not know as written in Ex. DW1/B. He converted the girl Shilpi on 08.08.2005 to the muslim religion. It is correct that in para no. 4 of affidavit dated 02.08.2005 Ex. PW1/C the girl had adopted Muslim religion and her name Shahana. The Ex. DW1/D is written in English. It is correct that he does not know English. It is correct that on Ex. DW1/E there is no photograph of Nafees. Even there is no statement of Nafees on Ex. DW1/E. It is correct that on Ex. DW1/E it is no where written that with whom she is going to marry and the name of the groom is not mentioned. It is correct that both the witnesses have not signed DW1/E. It is correct that Ex. DW1/F is in English language as well as in Arabic language. It is correct that in the Arabic language the name of the girl is not mentioned. It is correct that the certificate of conversion is in the English language and the girl also signed in English language which he does not know. It is correct that the date of birth and the certificate of girl is not mentioned in the Ex. DW1/G. It is correct that the date of birth certificate of the girl was given to him is also not mentioned in SC No. 124/08 Page No. 20/37 the Ex. DW1/G. It is correct that there is a column meant in Ex. DW1/H against the name of the bride and groom, there father's name, caste, age and residence. However, the caste against the column of the bride Shahana @ Shilpi is not mentioned. It is correct that neither Hindu nor Muslim is written in the said column. It is correct that he had not filled up the caste of Prosecutrix Shaheena in Ex. DW1/H and also the age is not mentioned. It is correct that in all the exhibits it is not mentioned by him that Shilpi Puri had given him the CBSE Date Of Birth Certificate Ex. DW1/I. He came to know that the girl is major because she gave him DW1/I. It is correct that DW1/I is written in English. It is correct that in Ex. DW1/I the date of birth of Shilpi Puri is not mentioned. It is correct that the affidavit Ex. DW1/B & C were already attested by the oath commissioner with his seal and signature and signed by Shilpi Puri. She put her thumb impression only in his presence. It is incorrect to suggest that he had not verified the age of Shilpi Puri and converted her to Muslim religion without verifying her majority. It is correct that she was converted on the same day and on the same day she was married. It is correct that the girl Shilpi converted her in muslim religion for the purpose of marriage only. He does not know anything if Shilpi Puri deposed in the Court on 10.07.2006 and she denied to be converted to be in Muslim religion and she is wife of accused. It is incorrect to suggest that the marriage was not performed by him in accordance with Muslim religion and rites and ceremony. It is correct that from Hari Nagar up to SC No. 124/08 Page No. 21/37 Ajmeri Gate there are a number of Maulvis who can perform marriage and can convert a Hindu in Muslim. It is incorrect to suggest that he is deposing falsely as the instance of the accused in order to save him and prepared a forged Nikahnama and other documents.
The witness was re-examined by Ld. Counsel for the accused and he has deposed in his re-examination that all those documents which are in English language and Exhibited by him today were read over to him in Hindi language by the girl Shilpi @ Shahan Beg and only thereafter, he accepted them to be true and conducted the proceedings. And all those exhibits which are Arabic and Urdu were read over by him to the girl Shilpi @ Shahana Beg and accused Nafis Beg and to other witnesses in Hindi and only after that they signed those documents.
13. DW2-Sh. Rameshwar Parsad, LDC of Record Room, Civil, Tis Hazari Courts, Delhi has deposed that he has brought the original case file bearing suit no. 303/05, date of disposal 04.10.2005, goshwara no. 375 RA from Record Room, Civil. The same was filed by Ms. Shilpi Puri @ Shahana Beg against Sh. Satpal Puri, Mrs. Sushil Puri, Sh. Vivek Puri and SHO PS Hari Nagar on 09.08.2005 before the Hon'ble Senior Civil Judge. This is the suit for permanent and mandatory injunction and the same was withdrawn by Shilpa Puri vide dismissed as withdrawn on 04.10.2005. The certified copy of the complete case file consisting plaint, order sheets, list of documents is Ex.
SC No. 124/08 Page No. 22/37DW2/A.(Original seen and returned). He had seen the certified copy page 1 to page 50 which is same as original.
He has also deposed in his cross examination that it is correct that there is no appearance of plaintiff/ Shilpi Puri on dated 10.08.2005 in the Court. It is also correct that the petitioner did not appeared on 18.08.2005. It is correct that the fresh suit is always filed in the Court of Senior Civil Judge and the matter is assigned to the concerned court and parties appear at 2.00 pm. It is correct that the process fee was not filed on 10.08.2005. It is correct that advocate Sh. Ashk Arora filed the present suit on behalf of the plaintiff and only the signature of Ashok Arora as advocate of plaintiff on the vakalatnama. It is also correct that on 04.10.2005 advocate Taneja & Company filed Vakalatnama on behalf of the plaintiff. It is correct that Ashok Aroara had given no objection on 04.10.2005 in favour of Taneja & Company to plead/conduct on behalf of plaintiff. It is correct that Shilpi Puri had not signed on her photograph affixed on the plaint. He did not know if the photo of plaintiff is required for filing a suit for permanent injunction. It is correct to suggest that he had not seen photo affixed on any suit of permanent injunction. He had no personal knowledge of the case. He only brought the relevant record.
14. DW3-Rohtash Kumar has deposed that the accused is his friend. About 3-4 years back, they were good friends. He was friendly even with the complainant-Shilpi Puri, who was in love SC No. 124/08 Page No. 23/37 with accused and wanted to marry him. He was also having a girl friend named Reshma and she was close friend of the complainant. They used to sit together and talk about themselves. The complainant and the accused also used to write love letters to each other and he can identify the writing of the complainant on the love letters as some of them were written in front of him by the complainant to the accused. He identified the writing of the complainant on mark H-1 to H-52 as some of them were written in front of him. The original letters mark H-1 to H-52 are now Ex.DW3/A (colly). In some of these love letters, even her name and the name of her girl friend Reshma is mentioned as she use to talk about them also in her letters. The accused and the complainant used to meet each other very frequently and wanted to marry each other. But the parents of the complainant did not want to marry the complainant with the accused. He had accompanied the accused and the complainant to Tis Hazari Courts on 02.08.2005 where they got prepared three affidavits voluntarily and consciously (already exhibits Ex.DW1/A, 1/B & 1/C) for the purpose of their marriage. After the preparation of those affidavits, he came back to his house from Tis Hazari courts. They had made a plan to marry each other and the marriage was to take place on 08.08.2005. So on that day, they went together for the purpose of marriage voluntarily. He did not accompany them as he was busy somewhere. Later on, he came to know that they married each other and later on the complainant came back to her parents and on the instructions of her parents, SC No. 124/08 Page No. 24/37 she filed a false case against the accused in order to falsely implicate him. In some of the love letters, the complainant has addressed the accused by the name of Sonu and herself by the name of Simran because she use to call the accused by this nick name due to her love with accused. He was very close and friendly with the complainant than the accused as she was a good and close friend of her girl friend Reshma and he came to know the accused through the complainant only.
He has also deposed in his cross examination that he does not know the present address of Reshma. She was residing as a tenant with her family in his neighbourhood, but he does not remember the name of the landlord. However, she was residing in the tenanted premises No. WZ-80, Tihar Village, N. Delhi. 18. It is correct that he is not married with Reshma. At the relevant time, Reshma was studying in 7/8th class with complainant Shilpi. It is correct that he is not a handwriting expert. Page no. 7 & 29 only, of the love letters were written by Shilpi in his presence. It is correct that page no. 25 to 32 is written in continuation. He does not remember the contents of letter page no. 25 to 32 except page no. 29. He know the complete address of Shilpi. He cannot tell the name of her father but she is resident of WZ-102, Tihar Village, ND-18, however, the name of her father is Sh. Puri. He does not remember the date of birth of Prosecutrix. Voltd. he know the name of her brother as Rinku, but he cannot tell the name of her mother. Affidavits were prepared for the purpose of marriage in his presence but he does not remember its contents.
SC No. 124/08 Page No. 25/37He cannot tell in which class the Prosecutrix was studying at that time. She was younger to him. His date of birth is 07.10.1982. She was major at that time and he was also major. He cannot tell the name of the attesting authority on the affidavits, however, there was a round stamp mentioned on it. He does not remember in which court, he had gone in Tis Hazari Courts. It is correct that till date he has not given in writing to the higher authorities of the police or to any other forum regarding false case against the accused. It is correct that he had not taken the proposal of marriage of Shilpi with accused before her parents. It is correct that accused was his very close and good friend. It is correct that now the accused is not close friend of mine. He had seen the record and there is no letter written by the accused to Shilpi. He had seen the letter but I cannot show even a single letter written by the accused to the prosecutrix. It is incorrect to suggest that no letter was written by the prosecutrix in his presence. It is wrong to suggest that he is interested witness. It is wrong to suggest that he is deposing falsely by saying that he does not remember in reply to the relevant questions. His memory is perfect. It is wrong to suggest that the accused and prosecutrix did not write letter to each other. It is wrong to suggest that the prosecutrix did not want to marry the accused. This year Diwali was on 17.10.09. I cannot tell the date of last year Diwali and Holi of this year. It is wrong to suggest that he mug up the date 02.08.2005 and 08.08.2005 to depose in favour of accused.
SC No. 124/08 Page No. 26/3715. DW4-M.A.Khan has deposed that he is a professional translator and translates the documents from Urdu to English. He hold a BA. Urdu Adib-A-Kamil from Jamia Urdu Aligarh University and he also did his B.A. From Maulana Azad National Urdu University, Hyderabad. The photocopies of both the said degrees are Ex. DW4/A and DW4/B. (Original seen and returned). He operate from the aforesaid Chamber no. 5. During the period of October 2005 he had translated two Urdu documents from Urdu to English. One document was a Nikahnama between Nafees Beg and Shilpi Puri @ Shahana dated 08.08.2005 and the same Urdu Nikahnama is already in the court file Ex. DW1/G. The English translated copy of the above said Nikahnama and translated by him is Ex. DW4/C. The same has been signed by him at point A and his round seal is affixed at point B. Another document was the entry of the detail of the said Nikahnama in the Nikah register of Kazi Maulana Riazzudddin Amini and a copy of the said entry is already in the court file as Ex. DW1/H. The said entry is also dated 08.08.2005. He translated the said entry from Urdu to English and the said English translated copy is Ex. DW4/D. It has been signed by him at point C and his round seal is affixed at point D. He translated the aforesaid two documents from Urdu to English as they are. He have seen the contents of the translated copies as well as the original ones and they are same which he translated from Urdu to English. He has also deposed in his cross examination that it is correct that in Ex. DW4/D there is no mentioning of caste and SC No. 124/08 Page No. 27/37 age of bride and bridegroom. It is correct that he is not authorized translator by the Govt. It is incorrect that he had translated the documents in favour of the accused.
16. DW5-Mohd. Fazil has deposed that he know the accused as he used to work as a furniture carpenter at Kirti Nagar, Delhi. Even he used to work as furniture carpenter at Kirti Nagar, hence they used to know each other. Accused used to tell him about his love affair with one girl named Shilpi @ Simran and that they are going for the court marriage and wanted him to help in the same. The accused also used to tell him that the parents of the girl were not agreed to the said marriage as the girl belonged to different religion. On 8.8.05, the accused met him at Kirti Nagar and told him that Shilpi had eloped with him and she had come with him for the purposes of marriage. He also met the said girl and asked her about her consent for the marriage, she was in a fully conscious state of mind and said that she was in love with accused and they want to marry each other willingly and voluntarily. Thereafter, they went to Tis Hazari Courts on the same day. There they met one Advocate named Sh. Ashok Arora and he advised them that first the girl has to convert her religion and become a muslim and has to conduct Nikaah before a Quazi and only thereafter, the marriage in court can take place. From there they went to Quazi Riazuddin at Ajmeri Gate and he converted the religion of the girl to muslim and she adopted the name as Shaheena and the Quazi performed the Nikaah between SC No. 124/08 Page No. 28/37 accused and the girl Shaheena. He worked as Wakil in the said Nikaah. He identify the girl and the accused in the photographs already Ex. PW1/D1 and Ex. PW1/D2. The photographs Ex. PW1/D1 was taken by him by his own camera at Tis Hazari Courts, before going to the Quazi. The statements of the girl already Ex. DW1/D & Ex. DW1/E dt 08.08.2005 were written by the girl and submitted to Quazi in his presence. The girl had put her photographs and signatures and thumb impression at point 1 and 2 on the conversion certificate already Ex. DW1/F. He identified the signatures of the girl. Quazi Riazuddin also put his signature at point 3 on the same in his presence. The Nikaahnama dt 08.08.2005 prepared by the Quazi is already Ex.DW1/G. Mohd. Farooq and Md. Irshad were present in the said Nikaah as witnesses and they had put their signatures as witnesses on the said Nikaahnama in his presence at point 6 & 7. The accused and girl put their signatures and thumb impression at point 1 & 2 at point 3 & 4. They also pasted their photographs at point 1 & 2. He put his signatures at point 8 and the Quazi put his signatures at point 5 in his presence. The Nikaah was entered on free will and consent of the accused and the girl and both were in fully conscious state of mind. The details of the Nikaah were entered by the Quazi in his marriage register already Ex.DW1/H dt 08.08.2005. Both the accused and the girl Shaheena put their photographs and signatures over them at point 1 & 2 and also signed and put their thumb impressions below the entry of this register at point 3 and 4 in his presence. He also put his SC No. 124/08 Page No. 29/37 signatures as Wakil-e-Nikaah at point 5 and the two witnesses namely Md. Farooq and Md. Irshad put their signature at point 6 & 7 on the said register. The copy whereof is already Ex.DW1/H. The photograph of the girl and the accused together taken by him in the campus of Tis Hazari Courts, is Ex.DW5/A. The boy and the girl were totally in their conscious state of mind during the above said marriage and conversion proceedings and fully participated voluntarily and willingly without any force or coercion. After the Nikaah he along with the accused and the girl went to the house of accused and thereafter, he left for his house. Later on, after about one week, he came to know that the girl Shaheena has implicated the accused in a false criminal case.
He has also deposed in his cross examination that he and the accused are known to each other for the last about 7-8 years. He and accused are in the same profession and doing work of carpenter in the same market. It is correct that he had appeared before the court as a witness on the asking of the accused. It is wrong to suggest that today he has deposed falsely in the court at the instance of accused in order to save him. It is wrong to suggest that the Nikaahnama Ex.DW1/G is fake and procured one or that the same has been prepared later on in defence of accused in connivance with the Quazi. It is incorrect to suggest that he is deposing falsely being friend of accused.
17. After hearing arguments and on the critical analysis of the testimony of the witnesses reveals that the Prosecution has SC No. 124/08 Page No. 30/37 failed to establish its case against the accused Nafis Beg for the alleged offences beyond shadow of doubt. Though, the Prosecutrix has supported the Prosecution case but her testimony is not trustworthy and do not inspire the confidence of the court. The Prosecutrix, as per the date of birth record produced in the Court by the concerned school officials was major i.e. 19 years at the time of alleged incident. The story as put forth by the Prosecution do not inspire the confidence of the Court as the Prosecutrix has deposed that on 18.08.2005 when she was returning from her computer institute at about 1.15 pm, she heard that somebody was calling her by name and when she turned she saw that the accused was standing near an auto rickshaw, he came near her and put a handkerchief on her nose due to which she lost her consciousness. He took her in the auto rickshaw and when she regained her consciousness on next day, she found herself in a room. The deposition of the Prosecutrix is not trustworthy, as it is highly improbable, that the place from where the Prosecutrix had allegedly been kidnapped was a busy place and persons might have been coming and going there and it is highly unnatural that nobody from the passersby even noticed that the Prosecutrix was being kidnapped in the broad day light at around 1.15pm in the busy area of Tihar Village, New Delhi. There is nothing to suggest that why an auto-driver will help the accused in such an illegal activity. Even the Prosecutrix did not raise any alarm in the way while she was taken to Tis Hazari Court by the accused. The case law on this aspect is also crystal SC No. 124/08 Page No. 31/37 clear and favourable to the accused as Hon'ble Supreme Court of India in AIR 1995, Supreme Court 2169 has also relied that, "Prosecutrix not putting up struggle or raising alarm while being taken away by the accused-
Prosecutrix appearing to be
willing party to go with the
accused on her own - Culpability
of accused not established -
conviction set aside.
Hon'ble Supreme Court of India in (2011)2 Supreme Court cases 385, Crl. Appeal No. 1053 of 2009 has also held that, "Penal Code, 1860-Ss. 376 & 375 and 366-rape-Conviction on sole testimony of Prosecutrix-
sustainability-even though Prosecutrix had several opportunities to protest and raise an alarm, she did not do so-Conviction on sole testimony of the Prosecutrix, on fact, held, is not sustainable-Her behaviour of not complaining to anybody at any of the stages after being allegedly abducted is wholly SC No. 124/08 Page No. 32/37 unnatural-Therefore, the High Court recording conviction on basis of her sole testimony set aside."
Hon'ble Himachal Pradesh High Court in 2010 CRI.L.J. 3545 in State of HP V/s Narender Kumar @ Hira & Ors. has also held that "Prosecutrix having passed through various crowded and public places during day time can not be said to have forcibly kidnapped or subjected to rape-
sole testimony of the Prosecutrix not reliable-acquittal of the accused persons is proper."
Hon'ble Supreme Court of India in 2010 CRL.L.J 2060 (supreme Court) in Abbas Ahmed Choudhary V/s State of Assam has also held that.
"testimony of the Prosecutrix-
though entitled to primary consideration - Principle that prosecution has to prove its case beyond reasonable doubt applies-There can be no presumption that a Prosecutrix SC No. 124/08 Page No. 33/37 would always tell entire story truthfully."
Hon'ble Rajasthan High Court in 2010 CRI.L.J. (NOC) 872 (Raj) in Shahbuddin V/s State of Rajasthan and Ors. has also held that, "evidence of Prosecutrix not trustworthy-Her conduct in traveling with her alleged rapists without protesting and without revealing her condition to any of the co-passengers, or to any other person also doubtful-
Considering the fact that relationship is in between a Hindu boy and Muslim girl, possibility of false case being fabricated can not be ruled out-
acquittal of accused persons, proper."
Applying the aforesaid case law in the facts and circumstance of the present case, it is evident and clear that the Prosecutrix had gone with the accused on her own free and sweet will and was a major i.e. 19 years of age and consenting party being in love with the accused.
The photographs of the Prosecutrix with the accused are SC No. 124/08 Page No. 34/37 on record which are Ex. PW1/D1 and Ex. PW1/D2 which clearly indicates that she was a consenting party. From perusal of the photographs, it does not appears that the Prosecutrix was having any kind of fear or she had been taken by the accused forcibly. After seeing the photographs one can reach to the only conclusion that the Prosecutrix was was a consenting party.
The letters allegedly written by the Prosecutrix to the accused running into 52 pages are also on the record which are mark H-1 to mark H-52 though the Prosecutrix had denied of writing the letters to the accused Nafis Beg. But the aforesaid letters have been duly proved in the defence evidence by DW3- Rohtash Kumar and the same gives ample indication that the same have been written by the Prosecutrix only to the accused. The aforesaid love letters have been duly proved by the DW3- Rohtas Kumar who was a common friend of the Prosecutrix and the accused. He is also the witness of the love affair between the accused and the Prosecutrix and is well acquainted with the handwriting of the Prosecutrix. Even, the name of this defence witness and his girl friend's name i.e. Reshma is mentioned by the Prosecutrix in the said love letters.
The DW1-Qazi Riazuddin has also proved the marriage of the Prosecutrix with the accused as he had converted the religion of the Prosecutrix from Hindu to Muslim and also conducted the Nikah of the Prosecutrix and the accused. He had duly proved the documents related to the marriage of the accused with the Prosecutrix and the documents regarding the conversion SC No. 124/08 Page No. 35/37 of the religion of the Prosecutrix. DW5-Mohd. Fazil has also supported the version of the accused during his testimony. He was the vakil of the parties at the time of the Nikah. He was present at the time of conversion and Nikah of the Prosecutrix and proved the conversion and the Nikah of the Prosecutrix and the accused. The photograph Ex. PW1/D-1 and D-2 were taken by this witness from his own Camera. The Prosecutrix had even denied the filing of the suit against her parents and brother while the same has been duly proved by the DW2-Sh. Rameshwar Prasad, LDC, Record Room, Tis Hazari Courts, who had produced the record pertaining to that suit filed by the Prosecutrix and the same was dismissed as withdrawn. I do not have any reason to disbelieve the testimony of the defence witnesses as the testimony of the defence witnesses particularly of the witness DW1-Qazi Riazuddin is quiet coherent, probable and trustworthy and inspire the confidence of the court. DW1-Qazi Riazuddin is an independent witness in this case. He is not related to any of the parties and has only conducted the conversion of religion of the Prosecutrix and also conducted the marriage/Nikah of the accused and the Prosecutrix. The testimony of DW3-Rohtas Kumar is also convincing to the Court as he was a common friend of Prosecutrix and the accused and his name has also been mentioned by the Prosecutrix in her letter allegedly written by her to the accused. On the other hand the testimony of the Prosecutrix and her father is highly doubtful and do not inspire the confidence of the Court. The case laws cited on behalf of the SC No. 124/08 Page No. 36/37 accused are also favourable him.
18. Hence, it can safely be concluded that in the present case the evidence on the record is not sufficient to hold the accused Nafees Beg guilty for the alleged offences, as the testimony of the Prosecutrix is highly doubtful and do not inspire the confidence of the Court. In the light of aforesaid discussions, I am of the considered opinion that the Prosecution has failed to establish a case against the accused Nafees Beg beyond reasonable doubt and I am also not inclined to convict the accused in doubtful circumstances, as the benefit of doubt is the right of accused. Consequently, the accused Nafees Beg is acquitted of the offences U/s 328/376/366/506 of IPC by giving benefit of doubt.
19. Case property, if any, be destroyed in accordance with rules on expiry of period of Appeal/Revision, if none is preferred or subject to decision thereof. File be consigned to the record room.
Announced and dictated in the open court today on 21.03.2011 R.B. SINGH ASJ, 03-Outer, Rohini Courts, Delhi/21.03.2011 SC No. 124/08 Page No. 37/37