Delhi District Court
State vs . Faisal Warsi And Ors. Page No. 1/24 on 14 September, 2017
IN THE COURT OF SHRI SANJIV JAIN,
ADDITIONAL SESSIONS JUDGE SPECIAL. FAST TRACK
COURT : SAKET COURTS: NEW DELHI.
Unique Case ID No. 02406R0336252013
SC No. : 1238/16
FIR No. : 88/13
U/s. : 376/506/328 IPC
PS : Kotla Mubarakpur, New Delhi.
State (Govt. of NCT of Delhi) ................... Complainant
Versus
1). Faisal Warsi
S/o Shri Qaiser Warsi
R/o House no. 577, Talim Manzil,
Maris Road, Civil Lines,
Aligarh, UP
2). Azharuddin
S/o Ghyasuddin
R/o House no. R6, Masjid Road
Jungpura, Bhogal
Delhi
3). Zafaruddin
S/o Ghyasuddin
R/o House no. R6, Masjid Road
Jungpura, Bhogal
Delhi
4). Irshad Navi
S/o Sh. Shirajuddin
FIR No. : 88/13
PS : Kotla Mubarak Pur
State Vs. Faisal Warsi and Ors. Page No. 1/24
R/o House no. 456/1, Abid Manjil
Air Nisha
Aligarh, UP
5). Mohd. Shoaib
S/o Sh. Mohd. Rafiq
R/o Nai Basti, Aligarh
Near GT Road,
UP .........................Accused Persons
Date of Institution : 01.05.2015
Judgment reserved for orders on : 12.09.2017
Date of pronouncement : 14.09.2017
J U D G M E N T
Facts:
1. The prosecutrix (name withheld to protect her identity) made a complaint to the Commissioner of Police, Delhi alleging therein that she had been working with Dominos Pizza at its branch at Defence Colony. There she met the accused Faisal Warsi who had been working as a Delivery boy. They became friends. He proposed to marry her. He used to take her from her house to the Branch and drop her at her house. On holidays, they used to go for outings. He also got her talked to his mother and sisters. In January 2013, her mother sent a suit for her. He told her that his mother likes her and he would make his family members agree for their marriage.
She alleged that on 25.01.2013, he dropped her at her house and said FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 2/24 that they would have dinner together. At about 11:30 p.m., he brought food and cold drink. They ate food together. She alleged that after taking cold drink, she started feeling giddy and became unconscious. He then made physical relation with her and took her obscene photographs. When she regained consciousness, she found herself naked with the accused. When she protested, he apologized and said that very soon, he would marry her and they would live like husband and wife. She had no other choice but to believe on him. She was also concerned for her honour. His brothers Jafar and Azhar used to live with him. They told her that he would marry her. They came close. Thereafter, he made physical relations with her twice against her wishes. She alleged that after sometime, the behaviour of the accused and his brother changed. When she asked him what was the matter, he made excuses. On 09.02.2013, when she asked him when he would marry her, he refused and said that his family members would not accept a Hindu girl. She became sad. He then said that if she would convert her religion from Hindu to Islam, he would make his parents agree for their marriage. She had no other option but to believe on him. On 11.02.2013, she willingly accepted Islam and did nikah with him. They started living as husband and wife. She also give him Rs. 25,000/. She alleged that on 24.02.2013, he told her that his mother is serious and he would have to go to Aligarh. When she asked him to take her with him, he told her that it would not be the right time for her to go there. He went alone. He switched off his mobile no. 8285569399. She could not contact him for 2 - 3 days. She contacted his brothers Jafar and FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 3/24 Azhar who asked her to forget him and told her that he would not come. They also abused her. She then called at the residence of the accused at Aligarh. He lifted the phone and abused her. He asked her to forget him and said that he never married her. She came under depression. She alleged that on 27.02.2013, he called her and tendered apology. He told her that he would live with her. At about 11:00 a.m., he came in her room with his brothers Jafar and Azhar and 5 - 6 friends including Irshad and Shoib. His three friends were standing in the gali. He asked her to hand over the original papers of the nikahnama. When she told him that the documents are not with her, they abused and threatened her. They told her that they have her obscene photographs and MMS video. Accused Faisal showed her, her obscene video. She was stunned. She thereafter started receiving threatening calls from them that if she would make complaint, they would upload her photographs on the net. Jafar told her that Faisal had given duplicate driving licence at the time of nikahnama and even the nikahnama is the forged document. He had done it earlier with many girls. Investigation:
2. The complaint was received in the police station on 20.03.2013. On 02.04.2013, the case was registered u/s 376/328/506 IPC. On 04.04.2013, the prosecutrix was got medically examined at Safdarjung hospital. On 05.04.2013, she was got counseled. Her statement u/s 164 Cr.P.C. was got recorded. On 18.04.2013, accused Faisal Warsi was arrested from Aligarh.
He was got medically examined at AIIMS. The doctor found him capable of performing sexual intercourse under normal circumstances. After the FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 4/24 investigation, accused Faisal Warsi was sent for the trial for the offences punishable u/s 328/376/506 IPC. Supplementary chargesheet was filed against the coaccused persons Jafruddin, Azharuddin, Irshad Navi and Mohd. Shoib u/s 506/509 IPC.
Charge:
3. After complying with the requirements contemplated u/s 207 Cr.P.C., the case was committed to this Court. Vide order dated 23.09.2015, prima facie case was made out against the accused Faisal Warsi for the offences punishable u/s 328/376, 417/376 and 493 IPC, 509/506/34 IPC and against the accused persons Azharuddin, Zafaruddin, Irshad Navi and Mohd.
Shoaib for the offences punishable u/s 509/506/34 IPC. The Charges were framed. The accused persons pleaded not guilty and claimed trial. Prosecution Evidence:
4. To substantiate its allegations against the accused, prosecution examined as many as thirteen witnesses.
PW1 is the prosecutrix. She testified on oath that she hails from Garwal. She got married to Anand when she was 14 / 15 years of age. In 2010, she took divorce from him and shifted in Delhi. She used to live alone in a rented room at Kotla Mubarak Pur. She worked with Dominos Pizza, Defence Colony as Receptionist from November 2012 to February 2013. Accused Faisal Warsi used to work there as Delivery Boy. They used to talk FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 5/24 and became friends. He proposed her for marriage but she refused. He used to take care of her. He used to take her from her house to the office and drop her on his bike. They used to go to the Restaurants and outings. He proposed her for marriage but she treated him as friend. He made her talk to his mother and sisters at Aligarh, UP. He told her that his mother likes her. He told her that he would convince his family members for his marriage with her.
On 25.01.2013, he dropped her at her house at about 9:30 p.m. He came back and said that he will bring food for her. He came with food and cold drink. They both ate food. He gave her cold drink. After taking it, she started feeling giddy. She was feeling that the accused was committing sexual intercourse with her. When she regained consciousness, she found herself naked. He was there. When she rebuked him for his wrong act, he apologized and told her that he would marry her. Believing on him that he would marry her, she did not disclose the incident to anyone. She stated that accused Faisal used to live with his cousins Jafar and Azhar in a rented house at Nizmuddin. She stated that, the accused Faisal started having sexual relations with her in her room without her FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 6/24 consent after giving assurance of marriage. As and when she asked him for marriage, he avoided on one pretext or the other. He told her that his family members are not agreeing for his marriage with her as he is Muslim and she is Hindu. He asked her to convert her religion for the marriage which she agreed.
On 11.02.2013, she converted her religion from Hindu to Muslim. Some documents were executed in Tis Hazari Court. He performed Nikah with her on the same day. After Nikah, they started living together in her room as husband and wife. She used to bear all the expenses. She gave him Rs.25,000/ after withdrawing from her saving account. He used to keep her ATM card.
She stated that on 24.02.2013, accused told her that his mother is not well, admitted in ICU and he has to go to Aligarh. She asked him to take her but he refused saying that it would not be proper to take her there but assured her that he would take her there at the right time. She contacted him on his mobile phone but it was switched off.
On 27.02.2013, she received his call. He asked her to forget him. The mother and sister of the accused also talked to her and asked her to forget him. They abused her. On hearing this, she got disturbed. On the same day, FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 7/24 he again called her, apologized for his conduct and told her that he is coming.
On the next day, he came at her room. She was not well. He asked her the documents of marriage but she refused. He then forced her to give the documents and started threatening.
The friends of the accused Irshad and Shoib with the accused Azhar and Jafar and 2 / 3 more persons entered her room. All the accused persons started threatening her and forcing her to give the documents of marriage. They threatened her that if she would complain to anyone, they would kill her. Accused Faisal showed her, some obscene photographs in his mobile phone. She came to know that the photographs were clicked on the night of 25.01.2013 when he committed rape upon her after intoxicating her. The accused persons told her that if she would not hand over the documents of marriage, they would upload her obscene photographs on internet.
Accused Jafar told her that her nikahnama is forged and the driving licence which Faisal had used as his ID proof at the time of marriage is also forged. He asked her to forget him and told her that accused Faisal has performed Nikah with many girls in the same FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 8/24 manner. She got scared. When accused Faisal came to know that the documents were not with her and with her lawyer, he started talking to her and asked the other accused persons to keep quiet. He asked her to go to her lawyer to take the documents. Accused Faisal took her to Tis Hazari Court leaving the other accused persons in her room. Her lawyer was not available on that day. Thereafter, he did not come to her but he used to give her threatening calls. She got perplexed. She got prepared the complaint Ex.PW1/A and sent it to Police Commissioner, Delhi.
Police took her to Safdarjung hospital where she was medically examined vide MLC Ex.PW1/B. She proved her statement u/s 164 Cr.P.C. Ex.PW1/C. She stated that during the physical relations with the accused, she had become became pregnant, which she aborted.
She proved nikahnama Ex.PW1/D of her marriage with the accused Faisal, marriage deed Ex.PW1/E, affidavit Ex.PW1/F and conversion certificate from Hindu to Islam Ex.PW1/G. On being crossexamined, she admitted that before her marriage with the accused Faisal Warsi, she was married to Anand in 2003. She has two children from FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 9/24 the marriage She stated that the marriage was dissolved through Court in Saket but she does not remember the exact date,it may be 29.09.2010 when she took divorce from her husband.
She stated that earlier she had been working with Dominos at Sector18, Noida. She admitted that Nitin was her colleague. She denied that she married to Nitin at Arya Samaj Mandir, Noida.
She stated that she came in complete sense in the morning. She went to her duty on the next day. She did not tell her colleagues about the act committed by the accused nor reported to the police.
She stated that the accused Faisal had proposed her 7 - 8 times before the incident. She refused for the marriage since she did not want to marry him. She admitted that after the incident, she had asked the accused to marry her. She stated that the accused had told her that his parents would not agree for their marriage since they belong to different religion. She thereafter, agreed to change her religion. She admitted that she changed her religion willingly without any compulsion / force. She alleged that the accused wanted to have documents from her which she did not want to give. She stated hat he was giving her threats and for FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 10/24 that reason, she told him that the documents were with her lawyer, however, the documents were with her. She stated that they lived in the house after the marriage as wife and husband for about 16 days till 27.02.2013. She denied that Faisal left the house when he came to know that she was already married and mother of two children. She stated that Faisal knew it before.
She stated that she does not know if the police recovered obscene photographs from Faisal. She denied that Faisal did not take her obscene photographs. PW2 Maulana Qazi Riyazuddin Amini was the Qazi. He stated that on 11.02.2013, accused had come to him with the prosecutrix for nikah. Two witnesses Mohd. Sadiqeen Khan and Sheraj Ahmad had also come with them. He checked the documents including the age proofs of the accused and the prosecutrix and their affidavits, marriage deed attested by the Notary and made inquiry from them. He stated that the prosecutrix was Hindu. She wanted to convert her religion to Islam. He stated that she voluntarily converted her religion to Islam and he gave her the certificate. He then performed their nikah vide nikahnama and obtained their signatures as well as of the witnesses. He gave them the conversion FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 11/24 certificate and the nikahnama. He proved the copy of nikahnama Ex.PW1/D, affidavit of the prosecutrix Ex.PW1/F, marriage deed Ex.PW1/E, affidavit of the accused Ex.PW2/A, conversion certificate Ex.PW1/G and the statement of the prosecutrix Ex.PW2/B. PW3 Sh. Sunil Kumar Srivastava was the Manager (HR), Jubilant Food Works Ltd. He proved the appointment letters of the accused Faisal Mark PW3/A and the prosecutrix Mark PW3/B with Dominos, as per which Faisal had joined on 18.11.2011 and the prosecutrix had joined on 09.11.2012 at Defence Colony branch.
PW4 Dr. Rita Trehan proved her prescription / report Ex.PW4/A. She stated that the prosecutrix had come in her clinic on 20.03.2013. Her pregnancy test was faintly positive. Her LMP was on 14.02.2013.
PW5 HC Devender Kumar was with the IO during the investigation. He stated that they had searched for the mobile phone of the accused but did not find it. PW6 Ct. Abhilash took the accused Faisal to AIIMS for his medical examination.
PW7 Ms. Anu Aggarwal, Ld. MM recorded the statement of the prosecutrix u/s 164 Cr.P.C. Ex.PW1/C. FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 12/24 PW8 Dr. Swati Gupta proved the MLC of the prosecutrix Ex.PW1/B prepared by Dr. Roohi Parveen, as per which, hymen of prosecutrix was torn. PW9 ASI Birender Singh proved the recording of the FIR Ex. PW9/A. PW10 SI Sushil Kumar arrested the accused Faisal vide memo Ex.PW10/A. He thereafter handed over the investigation to SI Pratima.
PW11 SI Pratima was the Investigating Officer of the case. She deposed on the lines of the investigation. On 04.04.2013, she got the prosecutrix medically examined at Safdarjung hospital. She got the statement of the prosecutrix recorded u/s 164 Cr.P.C. She got her counseled. She prepared the site plan Ex.PW11/A. On 19.04.2013, she got the accused medically examined at AIIMS vide MLC Ex.AW1/A and seized his exhibits. She stated that she did not seize any objectionable photographs from the accused.
PW12 Insp. Santosh Chauhan interrogated the accused Azharuddin, Zafaruddin, Irshad Navi and Mohd. Shoaib and stated that nothing objectionable i.e. photographs / videos of the prosecutrix were recovered from their possession. She formally arrested the accused FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 13/24 persons vide memo Ex.PW12/A (Azaharuddin), Ex.PW12/B (Zafruddin), Ex.PW12/C (Irshad) and Ex.PW13/ D (Mohd. Shoib).
PW13 SI Saroj had received the complaint Ex.PW1/A. She made endorsement on the complaint and got the case registered.
Statement of The Accused U/s 313 CR.P.C. :
5. After the prosecution evidence, statements of the accused persons u/s 313 Cr.P.C. were recorded. They denied all the incriminating evidence against them and pleaded their innocence.
6. Accused Faisal Warsi stated that he did not know if the prosecutrix was divorcee. He admitted that they used to work in the same outlet and were friends. He stated that he never proposed to marry her nor there were any talks regarding their marriage nor his mother sent any gift. He however admitted that he used to live with Jafar and Azhar in the house at Nizamuddin. He admitted that they belong to different religion and the prosecutrix had converted her religion from Hindu to Islam. He also admitted that he had performed nikah with the prosecutrix at Tis Hazari and executed the documents. He also admitted that they lived like husband and wife after the marriage but he stated that he used to bear all the household expenses. He admitted that he had asked the documents of the marriage from the prosecutrix since his parents wanted to see those documents but he never threatened her. He denied that he had taken the obscene photographs of the prosecutrix or threatened her. He stated that FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 14/24 they had gone to the Advocate from where they collected the documents.
He admitted that the prosecutrix had told him that she was pregnant but since she left him, he does not know what happened thereafter. He stated that their physical relations took place after the marriage and not before and he never committed sexual intercourse with her forcibly nor gave her cold drink. He stated that dispute took place when he came to know that she was already married having children as she never told him this fact before the marriage. She started living separately from him and made the complaint. He stated that he is still ready and willing to keep her as his wife.
The other accused persons stated that they are the brothers / cousins of the accused Faisal. They never threatened the prosecutrix. She falsely implicated them after the dispute with Faisal. Defence Evidence:
7. In defence, the accused persons did not examine any witness. Arguments & Contentions:
8. I have heard the arguments advanced by Ld. Counsel Sh. Anis Ahmed for the accused and Ld. Addl. PP Sh. Mohd. Iqrar for the State.
9. Ld. Counsel for the accused persons vehemently argued that the accused and the prosecutrix used to work in the same outlet of Dominos at Defence Colony. They were friends and used to move around. When the accused Faisal Warsi proposed the prosecutrix for the marriage, she never told him that she was divorcee or she was the mother of two children. Ld. Counsel stated that she had changed her religion voluntarily. She had gone FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 15/24 with the accused to the Qazi and performed nikah with him. Ld. Counsel stated that the accused never made physical relation with the prosecutrix prior to the marriage. When their dispute arose after the marriage, she made the false allegation of rape, criminal intimidation and abuses. Ld. Counsel stated that the accused always wanted to live with the prosecutrix.
He never cheated her. Had he ever intended to cheat her, he would not have performed nikah with her. Testimony of PW2 shows that there was no force or pressure on the accused or the prosecutrix when they performed nikah. They had executed the documents in this regard. Ld. Counsel stated that it is a case of matrimonial dispute but it has been given the colour of rape and criminal intimidation. Ld. Counsel stated that the prosecutrix did not give any specific date as to when the other accused persons went to her with the accused Faisal to ask for the documents. Ld. Counsel stated that coaccused persons never threatened the prosecutrix nor the accused Faisal Warsi at any time prepared her obscene video. Testimony of the IO clearly reveals that no obscene video / photographes were recovered from the possession or at the instance of the accused persons. In support of his contentions, Ld. Counsel placed reliance on the case Ashok Kumar Jha Vs. State of Bihar 2002[3] JCC 2004; Rajesh Patel Vs. State of Jharkhand II(2013) DLT (CRL), 103(SC); Raghunath Vs. State 1991 JCC 426; Prashant Bharti Vs. State of NCT of Delhi AIR 2013 Supreme Court 2753; Udey Vs. State of Karnataka 2003 [1] JCC 506; Deelip Singh @ Dilip Kumar Vs. State of Bihar AIR 2005 Supreme Court 203; Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & Anr. JT2003(1)SC 122; Deepak FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 16/24 Gulathi Vs. State of Haryana V(2013) SLT 50; Sudhanshu Sekhar Sahoo Vs. State of Orissa 2003(1) RCR (Criminal) 447 and Kuldeep Tyagi Vs. Sate NCT of Delhi 2013 III AD (CRL)(DHC) 121.
10. Ld. Addl. PP per contra argued that the prosecutrix had told the accused before the nikah that she was divorcee and mother of two children. Her children used to live with their grand parents. The intention of the accused since inception was dishonest. He gave her intoxicant in her cold drink as a result, she became unconscious. He committed rape upon her and took her obscene photographs. When she objected, he made false promise to the prosecutrix to marry her. He thereafter committed sexual intercourse with her twice against her wishes. He then refused to marry her. Ld. Addl. PP stated that he never wanted to marry her. He deceitfully got converted the religion of the prosecutrix from Hindu to Islam and did nikah with her to make her believe that she married to him and in that belief, he committed sexual intercourse with her. He went with his brothers and friends to her and asked for the documents. When the prosecutrix refused, he and his brothers i.e. coaccused persons abused her and criminally intimidated her to upload her MMS / video on the net. Findings :
11. I have bestowed my thoughtful consideration on the contentions raised on behalf of both the sides and have gone through the statements of the witnesses and the documents on record and also the case laws referred during the course of arguments.
12. Testimony of the prosecutrix / PW1 shows that she was earlier FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 17/24 married to Anand. She has two children from that marriage. Although she has stated that in 2010, she had taken divorce from him in the Court at Saket but she did not produce any document of her divorce from her previous husband. It is pertinent to mention that in her complaint Ex.PW1/A, she did not mention that she was earlier married to Anand and had taken divorce from him. According to the accused Faisal Warsi, the prosecutrix never told him about her previous marriage or her divorce when she performed nikah with him.
13. It is an admitted case of prosecution that the prosecutrix and the accused Faisal Warsi before their marriage belonged to different religions. The prosecutrix was Hindu and the accused Faisal Warsi was Muslim. Testimony of the prosecutrix reveals that she had willingly changed her religion from Hindu to Islam before marrying the accused Faisal Warsi. She had executed the documents in this regard before PW2 the Qazi who performed their nikah. Testimony of PW2 reveals that the prosecutrix and the accused had come together with the witnesses and after ascertaining their age and other details, and after taking their consent, he performed their nikah. They also signed on the nikahnama which was witnessed by two persons. Neither the prosecution nor the accused persons disputed this fact. Her testimony reveals that after the nikahnama, they lived as husband and wife. According to accused Faisal Warsi, when he came to know that the prosecutrix was earlier married, their dispute arose and she started living separately. He has stated that he is still willing to keep and live with the prosecutrix as her husband.
FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 18/24
14. PW1 / prosecutrix has stated that on 25.01.2013, the accused dropped her at her house. He after some time came in her house with food and cold drink. They ate food. He then gave her cold drink. She started feeling giddy but she was bit conscious. She was feeling that accused was committing sexual intercourse with her. When she regained consciousness, she found herself naked. She rebuked him. He apologized and told her that he would marry her. Believing on him that he would marry her, she did not disclose it to anyone. He, thereafter, started having sexual relations with her giving her assurance of marriage without her consent in her room. In the complaint Ex.PW1/A, she had alleged that after having cold drink, she became unconscious. He thereafter made physical relation with her. He also took her obscene photographs. When she regained consciousness, she found the accused with her and she was naked. Her testimony to the effect that the accused Faisal started having physical relations with her giving her assurance of marriage without her consent in her room is also contradictory. How can two things run simultaneously. It is pertinent to mention that all the time, their physical relations took place in the house of the prosecutrix. It is not the case that the accused after making promise did not marry the prosecutrix rather her testimony shows that they had performed nikah and they lived as husband and wife. It is to be noted that when the accused allegedly made physical relations with the prosecutrix without her consent, she never made complaint rather she married with the accused. It goes to show that she was also inclined towards the accused and wanted to marry him. She was matured enough to understand the FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 19/24 implications of making physical relations before marriage. In the case of Uday vs. State of Karnataka, 2003 (1) JCC 506, the prosecutrix and the accused were deeply in love. They used to meet often. She went out with the accused to a lonely place at night. The accused had also made promise on more than one occasion to marry her. It was held that in such circumstances, the promise loses all significance particularly when they are overcome with emotions and passions and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well and the prosecutrix had willingly consented to having sexual intercourse with the accused with whom she was deeply in love but not because that he promised to marry but also she desired it. In these circumstances, it would be very difficult to impute to the accused knowledge that the prosecutrix had consented in consequence of a misconception of a fact arising from his promise. The observations made in the case supra have relevance in this case. It was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities, it is an act of promiscuity on her part and not an act induced by misconception of fact.
15. As regards abuses / threats, the accused Faisal never disputed that he had married with the prosecutrix. Testimony of PW2 shows that the accused and the prosecutrix had signed on the nikahnama and it was witnessed by two persons. I do not find any substance in the allegations of the prosecutrix that the brothers / cousins of the accused Faisal had told FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 20/24 her that the accused had given his fake driving licence or the niakhanama was a fake document. The nikahnama was executed before PW2. It was witnessed by two persons. So how the prosecutrix believed on the co accused persons that the niakhanama was a fake document. The explanation given by the accused appears to be more plausible. According to the accused Faisal Warsi, he wanted to show his nikahnama to his parents, so he had asked it from the prosecutrix. That being the position, there was nothing wrong on the part of the accused Faisal Warsi to ask for the nikahnama to show it to his parents since they were not present in their marriage. In the instant case, there was no recovery of any obscene photographs / video from the accused persons or at their instance.
16. PW1 has stated that on 27.02.2013, she received the call of the accused and asked her to forget him. His mother and sister also talked to her and asked her to forget him. They also abused her. She became mentally disturbed. On the same day, the accused called her and apologized and said that he was coming. The complaint Ex.PW1/A does not find mention of such talks having taken place between the mother and the sister of the accused with the prosecutrix whereby they had asked the prosecutrix to forget the accused Faisal.
17. Facts and circumstances of the present case show that they had willingly performed their nikah and when their dispute arose, she made the complaint.
18. In the case of Rohit Chauhan vs. State NCT of Delhi, 2013, Bail FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 21/24 application no. 311/2013 dated 22.05.2013, it was observed:
"There may be cases where both persons out of their own will and choice develop a physical relationship. Many of the cases are being reported by those women who have consensual physical relationship but when the relationship breaks due to one or the other reason, the woman uses the law as a weapon for vengeance and personal vendetta."
19. I am conscious of the legal proposition that the conviction in such like cases can be made on the sole testimony of the prosecutrix even without any medical corroboration and the version of the victim in rape commands great respect and acceptability but if there are some circumstances which cast doubts in the mind of the court of the veracity of the victim's evidence then it is not safe to rely on the uncorroborated version of the victim of rape. It was held in case of Rajoo Vs. State of MP, AIR, 2009 SC 858 : "It cannot be lost sight that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 22/24 exaggeration".
20. In the case of Narender Kumar Vs. State of NCT Of Delhi AIR, 2012 SC 2281, it was observed:
23. The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of witnesses which are not of a substantial character. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.
21. From the evidence discussed above, I am of the view that the circumstances appearing in this case when examined in the light of above principles do not lead to any decisive conclusion that the accused Faisal Warsi committed sexual intercourse with the prosecutrix without her consent after intoxicating her, or he elicited the consent of the prosecutrix for the physical relations giving her false promise of marriage, or he deceitfully converted the religion of the prosecutrix from Hindu to Islam and did nikah with her to make her believe that she was married to him and in that belief, he committed sexual intercourse with her or he and co accused persons abused and criminally intimidated her that they have her obscene photographs / MMS video and would upload on internet. For the aforesaid reasons, accused Faisal Warsi is acquitted of the offences punishable under section 328/376, 417/376, 493, 509/506/34 IPC. The accused persons Azharhuddin, Zafruddin, Irshad Navi and Md. Rafiq are also acquitted of the offences punishable u/s 509/506/34 IPC. Their bail FIR No. : 88/13 PS : Kotla Mubarak Pur State Vs. Faisal Warsi and Ors. Page No. 23/24 bonds be cancelled. Their sureties be discharged. They are, however, directed to furnish bail bond in the sum of Rs.20,000/ each with one surety in the like amount, in compliance of section 437A Cr.P.C.
22. File be consigned to record room.
Announced in the open
court today i.e 14.09.2017 ( Sanjiv Jain)
ASJSpl. FTC / Saket Courts
New Delhi
FIR No. : 88/13
PS : Kotla Mubarak Pur
State Vs. Faisal Warsi and Ors. Page No. 24/24