Delhi District Court
Sc No: 634/17 State vs . Afzal & Ors on 29 January, 2018
SC No: 634/17 State Vs. Afzal & Ors
IN THE COURT OF SH. GAUTAM MANAN
ADDITIONAL SESSIONS JUDGE-FAST TRACK
SOUTH-WEST, DWARKA, NEW DELHI
In the matter of:-
S. C. No. 634/17
FIR No. 250/17
Police Station Dabri
Under Section 376/506 IPC
State
Versus
1. Afzal
S/o Sh. Abdul Basid
R/o H. No. 344, Mohalla Darbar Kalan,
Village Kairana, District Shamli, UP.
2. Sahid
S/o late Sh. Abdul Basid
R/o H. No. 344, Mohalla Darbar Kalan,
Village Kairana, District Shamli, UP.
3. Sahid
S/o Sh Irfan
R/o Village Thana Bhawan, Post Thana Bhawan,
Village Kairana, District Shamli, UP.
.....Accused Persons
Judgment 1 of 14
SC No: 634/17 State Vs. Afzal & Ors
Date of institution 30.10.2017
Judgment reserved on 15.01.2018
Judgment Pronounced on 29.01.2018
Decision Acquitted
JUDGMENT
1. Accused Afzal is facing trial on allegations of committing repeated rape on prosecutrix "S" aged about 28 years. Accused Sahid S/o Abdul Basid and accused Sahid S/o Sh. Irfan are facing trial on allegations of threatening prosecutrix.
2. FIR in question was registered on 15.05.2017 on basis of a written complaint of prosecutrix who alleged that Afzal used to come to her house to meet her and gradually they both fell in love with each other. Afzal proposed her for marriage. During their relationship accused Afzal established physical relations with her many a times against her consent. Upon insistence of prosecutrix and pressure exerted on him, Afzal on 05.03.2016 came with his friend and a Qazi. Afzal asked prosecutrix to call Judgment 2 of 14 SC No: 634/17 State Vs. Afzal & Ors witnesses from her side and on that day, accused Afzal married prosecutrix. Prosecutrix alleged that it was a fake marriage and after solemnizing marriage, accused stayed with her for months together and established physical relations with her. About two months prior to the lodging of complaint, prosecutrix asked Afzal to get their marriage registered but accused told her that he does not want to stay with her and he had solemnized a fake marriage with her. Afzal told her that the Nikahnama is fake as it does not bear stamp of any Masjid. Prosecutrix stated that thereafter accused left her and since then his mobile numbers are switched off. Prosecutrix further alleged that she tried to contact brother of accused namely Sahid but he threatened to kill her that in case prosecutrix would lodge a police complaint then he will get her killed. Prosecutrix alleged that she called friend of accused Sahid and he also abused her and told her that he will never allow to meet her with Afzal. Prosecutrix alleged that accused raped her on the false pretext of marrying her and has also cheated her. She prayed for an action against accused persons.
Judgment 3 of 14 SC No: 634/17 State Vs. Afzal & Ors
3. After registration of case, prosecutrix was medically examined. Her statement was also got recorded U/s 164 Cr.P.C. Accused Afzal was arrested. Accused Afzal and other accused persons were charge-sheeted. Charge for offence punishable U/s 376 (2) (n) IPC was framed against accused Afzal. Charge for offence punishable U/s 506 (II) IPC was framed against accused Sahid S/o Sh. Abdul Basid and Sahid S/o Sh. Irfan. Accused persons pleaded not guilty and claimed trial.
4. Prosecution examined two witnesses. PW1 prosecutrix deposed on lines of her complaint. She proved Nikahnama as Ex. PW1/A of her marriage with accused Afzal. Her complaint made to the police as Ex. PW1/B. Her medical examination vide MLC Ex. PW1/C and statement under section 164 Cr. P.C. as Ex. PW1/D. Prosecutrix deposed that accused was arrested in her presence vide arrest memo Ex. PW1/E. Prosecutrix also proved divorce deed between her and accused as Ex. PW1/F. Judgment 4 of 14 SC No: 634/17 State Vs. Afzal & Ors
5. PW2 WSI Chanderkanta is Investigating Officer. She prepared rukka as Ex. PW2/A on the basis of the complaint of the prosecutrix. IO got recorded statement of prosecutrix U/s 164 Cr. P.C. She proved arrest of accused Afzal and his personal search vide memo Ex. PW1/E and Ex. PW2/E. She also proved disclosure statement of accused Afzal as Ex. PW2/F and pointing out memo prepared at his instance as Ex. PW2/G. Investigating Officer deposed that prosecutrix handed over copy of Nikahnama of her marriage with accused Afzal which was seized by her vide memo Ex. PW2/H.
6. During trial of the case statement of accused persons were recorded. They admitted registration of FIR, recording of statement of prosecutrix U/s 164 Cr. P.C. and medical examination of prosecutrix and that of accused Afzal. In view of statement of accused persons, witnesses to prove the aforesaid documents were dropped from the list of witnesses.
Judgment 5 of 14 SC No: 634/17 State Vs. Afzal & Ors
7. In statement recorded U/s 313 Cr. P.C., accused Afzal stated that prosecutrix has already divorced him and she falsely implicated him as she again wants to marry him. Other accused persons stated that they were implicated in present case as they supported accused Afzal in his tough times and prosecutrix wanted to harass acquaintances of Afzal in every possible way.
8. It is contended on behalf of accused persons that it is admitted case that accused Afzal married prosecutrix on 05.03.2016 and in the Nikahnama, brother of prosecutrix and her landlord were witnesses. It is submitted that after staying together for a year both the prosecutrix and the accused agreed to take divorce vide divorce deed dated 10.03.2017. It is argued that there is no evidence on record which establishes that accused Afzal ever committed any sexual assault on the prosecutrix nor the testimony of prosecutrix suggests so. On behalf of other accused persons it is submitted that there is no evidence on record which indicates that they have ever threatened prosecutrix.
Judgment 6 of 14 SC No: 634/17 State Vs. Afzal & Ors
9. Per contra, Ld. Addl. P.P for State submitted that prosecutrix in all her statements categorically stated that accused Afzal established physical relations with her forcibly and other accused persons threatened him when she approached them. It is stated that in the light of testimony of prosecutrix which is reliable and trustworthy, accused persons are liable to be convicted.
10. I have heard rival submissions and have gone through the record carefully.
11. After initial complaint, statement of prosecutrix Ex. PW1/D was recorded U/s 164 Cr. P.C. It's loose English translation reads as under:-
" I know Afzal since 2014. We were good friends and used to roam around. In December 2015, he asked me to marry him. In January 2016, I took a room on rent in Chanakya Place. He started visiting there. He on pretext of marrying me forcibly raped me. In February 2016 I told him to marry me but he made an excuse. I told him this will not do. I will make a complaint Judgment 7 of 14 SC No: 634/17 State Vs. Afzal & Ors against you. He told that in 2-4 days time, he will marry me as per Muslim religion and there should be two witnesses from girl's side. On 05.03.2016 he came with two persons, one Qazi and his friend Mehtab. They came at my room. Qazi wrote something in Urdu. Mehtab did not sign it but we three signed it - me, my landlord and his driver. They also gave copy of the certificate to me. We started residing in the room as husband - wife. On 23.12.2016 he left me. I searched him a lot. His phone used to be picked up by his friend. I called his brother to which he replied that they do not recognize this marriage-don't come here otherwise they would kill me. His mother also stated so. I told his brother that is he will not come then I will make a complaint. His brother stated that he will send him. On 08.02.2017 he came. I told him to get the marriage registered but he made an excuse. He stayed for 2-3 days and went away. On 28/29.03.2017 he came and stated that he cannot live with me. I requested him with folded hands. He did not agree. I told that I have recorded his conversation. Then he started talking with love. After 2-3 days he left. On 07.04.2017 he came and talked gently. On 08.04.2017 he forcibly took my phone and went away. On 10.04.2017 he told that we are not married and the marriage cannot be solemnized without a stamp of Masjid. Thereafter his phone is switched off. His family members are threatening me. His friends are abusing me. Last time he forcibly raped me on 08.04.2017 by saying that you are my wife.
12. In her examination in chief, prosecutrix deposed as under:-
Judgment 8 of 14 SC No: 634/17 State Vs. Afzal & Ors
"Accused Afzal, present in the court today (correctly identified) was known to me as earlier I was residing in Kharkhouda, Haryana and accused Afzal used to place rehri for selling ready made garments near my house. We used to talk to each other in Kharkhouda also and later on we exchanged our mobile numbers. We used to talk over phone also.
In January 2016, I shifted to Delhi and started residing in a rented accommodation at Chanakya Place, Dabri. Accused Afzal used to visit my house at Chanakya Place off and on. Gradually we became friends and we fell in love. After my shifting to Delhi accused Afzal proposed for marriage and I accepted his proposal of the same. Thereafter, on number of occasions accused Afzal established physical relations with me on the pretext of marriage. Whenever I asked accused Afzal to marry, he avoided on one pretext or the other. One day when I told accused Afzal that I will report to the police, he told me that he will marry me within 2-3 days.
On 05.03.2016 accused Afzal along with his friend namely Mehtab and one Qazi came to my room. Said Qazi told me that two witnesses are required for performing 'Nikah'. On advise of Qazi, I called my landlord namely Mahendra and his driver namely Ravi to be a witness of 'Nikah' and both the witnesses reached there. In my room accused Afzal performed 'Nikah' in presence of Qazi and two witnesses. At that time my younger brother was also present there. My brother, Mahendra and Ravi signed the Nikahnama as a witness...... Nikahnama is now Ex. PW1/A (OSR).
Judgment 9 of 14
SC No: 634/17 State Vs. Afzal & Ors
After marriage accused Afzal started
residing with me in the said rented accommodation. In April 2016 we shifted in another rented accommodation at Badarpur and we stayed there till 22.12.2016. On 23.12.2016 accused Afzal left said place without telling anything to me.
Thereafter, I made a telephonic call to elder brother of accused Afzal namely Shahid S/o Mohd Basid, accused present in the court today (correctly identified) who told me that family members of accused Afzal are not accepting my marriage. Brother of accused Afzal threatened me that he would kill me if I visit the native place of accused Afzal. Thereafter, I made a telephonic call to friend of accused Afzal namely Shahid, accused present in the court today (correctly identified). Accused Shahid did not give me any satisfactory reply and started abusing me on my repeated calls. He told me not to make unnecessary calls to me.
On 10.03.2017 before registration of this FIR, accused Afzal and his brother Shahid took my signatures on a stamp paper and later on converted it into divorce deed. Even after getting the deed signed accused Afzal told me that he has obtained my signatures only to satisfy his family members and then he stayed with me till 10.04.2017. After 10.04.2017 accused Afzal left me and switched off his mobile. Then I lodged the complaint against accused persons....."
Judgment 10 of 14 SC No: 634/17 State Vs. Afzal & Ors
13. Case of prosecution is that accused Afzal sexually assaulted prosecutrix against her consent and thereafter under her pressure married her. If at all prosecutrix was raped by Afzal before her marriage then why she choose to marry him is not explained by her. It is matter of record that prosecutrix did not lodge any such complaint against Afzal at the alleged time of assault. No specific date, month, time and place is mentioned by prosecutrix when Afzal established physical relations with her against her consent rather she admits that she was in love with accused and got married to him in presence of his brother. During her cross-examination prosecutrix admits that physical relations between her and Afzal were consensual.
14. Prosecutrix in complaint Ex PW1/B though alleged that accused Afzal created a fake Nikahnama to establish physical relations with her but during her testimony she admits that she married Afzal on 05.03.2016. Marriage between prosecutrix and accused Afzal stands proved by Nikahnama as Ex PW1/A. Judgment 11 of 14 SC No: 634/17 State Vs. Afzal & Ors
15. During her cross-examination prosecutrix deposed as under:
..... It is correct that my physical relationship with accused prior to our marriage was consensual. It is correct that my differences with accused Afzal arose as and when accused Afzal used to pressurize me to show my divorce papers to him. It is correct that I married accused voluntarily and I divorced him voluntarily.....
16. Once prosecutrix admitted her marriage with accused Afzal then the question of accused Afzal establishing physical relations with prosecutrix on any false pretext does not arise. Prosecutrix admits that prior to her marriage physical relations between her and Afzal were consensual and due to marital differences with Afzal, she got registered present FIR. Thus, in light of testimony of prosecutrix accused Afzal cannot be held guilty for committing rape upon prosecutrix.
17. Case against accused Shahid s/o Sh. Abdul Basid & Shahid S/o Sh. Irfan: Allegations against both these accused persons are that they extended threat to prosecutrix. During her Judgment 12 of 14 SC No: 634/17 State Vs. Afzal & Ors cross-examination, prosecutrix admitted that did not give any detail to IO in respect of any threat given by accused Shahid (brother of Afzal). No date, time or occasion is appearing in testimony of prosecutrix which could substantiate allegations of threat extended by accused Shahid to prosecutrix.
18. Shahid son of Sh. Irfan is friend of accused Afzal. In her testimony prosecutrix merely deposed that:
Thereafter, I made a telephonic call to friend of accused Afzal namely Shahid, accused present in the court today (correctly identified). Accused Shahid did not give me any satisfactory reply and started abusing me on my repeated calls. He told me not to make unnecessary calls to me.
19. Testimony of prosecutrix indicates that accused Shahid did not give her any threat rather her grievance against him is that he did not give her any satisfactory reply and abused her on her repeated calls. Accused Shahid told her not to make unnecessary calls to him. This assertion by no stretch of imagination would amount to extending of any threat.
Judgment 13 of 14 SC No: 634/17 State Vs. Afzal & Ors
20. Thus, in light of the testimony of prosecutrix, accused persons cannot be held guilty of the offence they are charged with. Accused persons stands acquitted. Their personal bond are canceled and sureties are discharged. Documents, if any, be returned to sureties. In terms of Section 437(A) Cr.P.C., accused persons are directed to furnish personal bond each in sum of Rs. 10,000/- with one surety each in like amount for a period of six months.
File be consigned to record room.
Announced in the open court on 29th day of January, 2018. Digitally signed
by GAUTAM (GAUTAM MANAN)
MANAN
GAUTAM Date:
ASJ (SFTC) /SOUTH WEST
MANAN 2018.01.29 DWARKA COURTS:DELHI
16:12:05
+0530
Judgment 14 of 14