State v Aftab Alam (Marital Rape)

8/12/2019 State v Aftab Alam (Marital Rape)

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IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIALFAST TRACK COURT), DWARKA COURTS, NEW DELHI.

SC No.131/13.

Uni!" C#$" ID No. %&'%R%%&&%13.

S*#*" V$. 1. A+*# A-#,S/o S. 0#n!2 A-#,R/o R4C45, Si*#6!2i E7*n. P#2*4I,

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&. J#i2 A-# (#-2"#89 Di$:#2;"8)S/o S. 0#n!2 A-#,R/o R4C45, Si*#6!2i E7*n. P#2*4I,D#2i,D"-i.

3. 0#n!2 A-# (#-2"#89 Di$:#2;"8)

S/o 0o8. H!$$"n A-#,R/o R4C45, Si*#6!2i E7*n. P#2*4I,D#2i,D"-i.

D#*" o+ In$*i*!*ion < 1.3.&%13.

FIR No.13 8#*"8 1%.1.&%13.U/$. 3&=/35 IPC.P.S. Bin8#6!2.

D#*" o+ 2"$"2>in; !8;"n*/O28"2 < &?..&%1'.

D#*" o+ 62ono!n:""n* < %.5.&%1'.

JUD@0ENT

1. The abovenamed accused Aftab Alam alongwith his

father Sh. Manjoor Alam and brother Zahir Alam were

chargesheeted by the prosecution for the offences punishable u/s.

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!"/##/$#/%/%&' ()*. (t may be mentioned here that accusedManjoor Alam and Zahir Alam were discharged by this court vide

order dated 1".+.!&1. *harges were framed against accused

Aftab Alam only and he has been facing trial.

!. As per the prosecution case, the prosecutri- namely

0real name withheld in order to conceal her identity has been

residing as a tenant alongwith her family in 2ouse 3o.A4"#,)an5ha oad, 6ttam 3agar, 3ew 7elhi, belonging to the accuseds

father Man8oor Alam at monthly rent of s.,&&&/4. Accused Aftab

Alam used to visit their house for demand of rent and used to

spend time in their house and tal5 to them. About ! or months

before registration of the 9( in this case, the accused had visited

the residence of the prosecutri- to receive rent. 2e was having a

bottle of )epsi cold drin5 in his hand. 2e as5ed the prosecutri-where her parents were and she replied that they are not at home

and he should come home in the evening. 6pon hearing this, the

accused as5ed the prosecutri- to 5eep bottle of cold drin5 in the

refrigerator and left from there. The accused returned there after

about half an hour and as5ed the prosecutri- to bring )epsi bottle

from the refrigerator as also one glass. Accused poured )epsi in

the glass and offered same to the prosecutri-. The prosecutri-

consumed the )epsi and soon thereafter she became unconscious.

:hen she regained consciousness, she found that her clothes

were ta5en off and realised that she has been raped by the

accused. She as5ed the accused what has he done and told him

that she would narrate the entire incident to her family members,

upon which accused told her that he loves her and wants to marry

her. Thereafter accused left. 3e-t day, the accused as5ed the

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prosecutri- to get prepared. She got ready and the accused too5her to the house of his paternal aunt 0;ua near 7haula


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. (t is further case of the prosecution that the

prosecutri- had appeared in the police station on &'.1.!&1 and

submitted a written complaint to the S2=. She was ta5en to 776

2ospital for medical e-amination by S( 3aresh


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witnesses to prove the charges against the accused. The accusedwas e-amined u/s.1 *r.)* on !+.+.!&1+ wherein he denied the

prosecution case and claimed false implication. The accused

e-amined three witnesses in his defence.

%. ( have heard ?d. A)) for State, ?d. *ounsel for the

accused and have perused the entire record.

#. ):1 has proved the school record of the prosecutri-

regarding her age. As per record proved by her, the date of birth

of the prosecutri- is &1.+.1''+. According to the prosecutri-, the

first incident of rape had ta5en place in the month of

=ctober/3ovember, !&1! which means that the prosecutri- was

more than 1" years of age at that time and thus a major.

$. The prosecutri- has been e-amined as ):. She

deposed that the accused is the son of their landlord and her

family is residing in the house of accuseds father as tenant at a

monthly rent of s.,&&&/4. She has si- brothers and one sister.

She further deposed that accused used to come to their room to

receive rent. (nitially, he used to come once in a month but after

sometime, he started coming daily at about 1 p.m. when she was

alone in the house. Accused told her that he would teach her and

he taught her history for about three days in the month of

=ctober, !&1!. She further deposed that on 1'.$.!&1!, accused

came to her room at about +.& p.m. or %.& p.m. when she was

alone in the house. 2e was having a plastic bottle of cold drin5 in

his hand and as5ed her to 5eep it in the refrigerator. 2e left saying

that he would return in about half an hour or one hour. She usually

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remained alone in her house till about " pm. 2e told her that he isgoing to 3ajafgarh. 2e returned after about half an hour and as5ed

her to bring the cold drin5 bottle and a glass, which she did. 2e

poured the cold drin5 in the glass and offered it to her. She

consumed the cold drin5 and after about five to si- minutes, she

was only semi conscious. Accused too5 her to their room on the

second floor of the house. She was only semi conscious but she

was not in a position to see properly what was happening around.She became fully conscious after about two to three hours and she

noticed that she was lying completely nude on the bed and the

accused was besides me in nude condition. She started weeping

and told him that she would disclose the incident to her mother.

She also made a call on the mobile phone of his father, but the

mobile phone was with him only and he told her that his parents

have gone to ;ihar. 2e threatened her that if she narrated theincident to anybody, he would 5ill her. Thereafter accused left

saying that he would ta5e her to somewhere the ne-t day.

". She further deposed that ne-t day at about " a.m.,

accused gave her a phone call and as5ed her to come out of the

house as he was waiting outside the house. Accused was on his

motorcycle. She boarded his motorcycle as pillion and he too5 her

on the motorcycle to the house of his paternal aunt 0;ua ahead of

7haula


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during that period. Thereafter he told her to go home. She told himthat why should she go home when their 3i5ah has been

performed and she would stay in his house only. 2e said that she

would have to go home for some period of time during which he

would arrange an accommodation on rent and then they would

start residing there together. Thereafter she returned home.

2owever, the accused did not come to ta5e her. :henever she

called him, he used to tell her that he has not arranged any roomon rent and also that he does not have money. She made a call to

the father of the accused informing him about their marriage, but

he was not prepared to believe the same. Accused used to ta5e

her to the house of his friend at 7abri where also he used to rape

her.

'. She further deposed that on &'.&1.!&1, the accusedcalled her and as5ed her to reach the house of friend at 7abri, but

she did not go there. Accused told her that if she would stay with

him, she shall have to do whatever he as5s her to do. Then on the

same day, accused came to her house at about 1 p.m. and started

beating her and thereafter left. She called father of the accused

and apprised him about the actions of the accused. At about

p.m., accused, his father and his elder brother came to their

house. She told them about the acts of the accused but they were

not prepared to believe her and told her that she cannot do

anything to the accused. She further deposed that on the same

day i.e. &'.1.!&1 she alongwith her elder brother Munna @ureshi

went to the police station and submitted a written complaint which

is -.):/A. 9rom the police station she was ta5en to hospital for

medical e-amination. 3e-t day, she was brought to the court

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where her statement u/s.1#+ *r.)* was recorded, which sheproved as -.):/;. 9rom the court, she too5 police officials to the

house of the accused where the accused was arrested in her

presence vide arrest memo -.):/*. She was declared hostile

by ?d. A)) and in the cross e-amination conducted by ?d. A)), she

admitted that after the first incident of rape, the accused had told

her that he loves her and wants to marry her. She also admitted

that one day, accused had called her to his house and burnt all thepapers which he had prepared and declared that he has not

solemni8ed any marriage with her and that all this was a 7rama.

2e also threatened her that if she narrated this either to his family

members or her own family members, he would show her nude

photographs to his friends. She could not say whether accused

was ta5ing her to the house of his friend at ;indapur as mentioned

by her in his statement u/s.1#+ *r.)* -.):/;. 2owever, sheadmitted that the accused used to ta5e her to his friends house

almost daily and used to have se- with her on the prete-t of being

married to her.

1&. (n the cross e-amination, she deposed that the house,

in which they resided is three storeyed and the whole house is in

their occupation. =nly one of her brothers is married having two

daughters and his family resides separately on the ground floor of

the same house. They have been residing in the house of the

accused as tenants for the last four or five years. Sometime her

mother, sometime she herself and sometime her brother used to

pay rent to the landlord. 2er father has never paid rent himself to

the landlord. She had paid rent on two occasions to the father of

the accused and about % to # times to the accused. She deposed

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that the accused had told her that he is pursuing ;.A. *ourse andis in the final year. She did not 5now that he is 1!thfail and that his

subjects were *ommerce. The accused used to teach her history in

the room on the second floor of the house and he did so for about

three days in the month of =ctober, !&1!. She further deposed

that on 1'.$.!&1! she was present alone in the house at +.& p.m.

2er father had gone for wor5. 2er mother also had gone for wor5

as she leaves at " a.m. and returns at " p.m. or ' p.m. 2er sisterhad gone for tuition classes as she returns from tuition classes at

about # p.m. or #.& p.m. 2er brothers


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after 5eeping his bag on the first floor. 3obody else had come tothe house during that period. She did not 5now who amongst her

family members returned home first after the incident.

1!. She further deposed that on the ne-t day of the

incident, she left home for school as usual at $ a.m. and accused

met her in the gali outside their house. 2e told her not to go to the

school as he would ta5e her for an outing after ".& a.m. when hermother would have left for wor5. Accordingly, she did not go to

school and returned home. According to her, she as well as her

sister Cul8ar studied in the same class i.e. 1!thclass and in the

same school and usually leave for school together. 2owever, she

added that her sister leaves home for school after her as she

wa5es up late and they do not meet each other in the school even

during the lunch brea5. 2er sister goes for her computer classesdaily from the school itself and also attends nglish Spea5ing

*ourse on alternate days and therefore, they do not come home

together from school. 2er sister used to return home daily at #

p.m. or #.& p.m. after ta5ing her e-tra tuition classes. She had a

separate mobile phone bearing no.$"!$1""+"% and her sister had

a separate mobile phone. =n !&.$.!&1!, she left home alongwith

accused between ".& a.m. and '.& a.m. At that time only, her

brother 2asim was present in the house but she did not inform him

that she is leaving with the accused. (n reply to the court >uestion,

she deposed that when she returned home after accused met her

in the gali, her parents were present in the house and she told that

accused had met her and as5ed her to go home. 2owever, she did

not tell them that accused would be coming to ta5e her alongwith

him at about ".& a.m. and she would go with the accused for an

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outing.

1. She further deposed that she had seen the accused

ma5ing rounds on his motorcycle in front of their house. The

accused then made a call to her saying that he is waiting for her at

2imalaya Sagar road and accordingly she left home and met him

at that place. She had not gone alongwith accused on his

motorcycle before that date. After that day, she accompanied theaccused on his motorcycle several times. The accused used to

ta5e her on his motorcycle from her tuition classes after every ! or

days and on those days, she did not attend tuition classes. She

did not tell anybody at home that she has been going alongwith

accused for outing. She denied that she had gone alongwith

accused in presence of her parents and within their 5nowledge

after !&.$.!&1!. She deposed that she has ban5 account in )3;,3ana5pura. She admitted that she had gone to the ban5 alongwith

accused on one occasion only i.e. !&.$.!&1! as her mother had

given some money to her to deposit the same in her account. =n

that day, accused dropped her at home at about ! p.m. and

nobody was present in her house at that time. She denied that she

had visited )3;, 3ana5pura, again alongwith accused on

!.$.!&1!. She deposed that a person named Munna is also living

with them since his childhood and she treats him as his brother.

2e is an electrician and on the date of incident had left for Bama

Masjid at $ a.m. and returned at $.& p.m. She further deposed

that the girl Seema is her friend and is much elder to her. She did

not narrate the incident of rape to her. She denied the suggestion

that Seema had made her to tal5 to the father of the accused. She

did not 5now whether Seema had tal5ed to the accused and his

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family members after the incident and had demanded money fromthe accused and his family on her behalf in lieu of withdrawal of

the present criminal case. A *7 containing conversation between a

male and a female was played in the court. The witness denied

that the female voice in the conversation is that of Seema. She

further deposed that she had never made a call to the family

members of the accused after the day of incident. Another *7

containing the conversation between a male and a female wasplayed in the court and the witness denied that the female voice is

her voice. She further deposed that one day after about one and a

half months of the incident of rape, 3iyamat, an ac>uittance of the

father of the accused, had called her to his house. :hen she

reached his house, the father and brother of the accused were

present there and 3iyamat as5ed her whether she would li5e to

settle the matter with the accused but she refused. The brotherand the father of the accused did not say anything to her. She did

not 5now 3iyamat before that date. She had gone to the house of

3iyamat alone. She denied that she made several calls to 3iyamat

as5ing him to meet her regarding this case and pursuant to those

calls, the aforesaid meeting was fi-ed. She did not tell anybody at

her home that she had received calls from 3iyamat and that she is

going to meet him at his house. She could not say whether Seema

was or was not present in the house of 3iyamat at that time, but

had ta5en considerably a long time to answer this >uestion. She

denied that the meeting was arranged at the instance of Seema

and herself and further stated that she does not 5now whether

Seema was present there.

1+. She further deposed that she had told her mother that

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she had gone to the ban5 alongwith accused on !&.$.!&1! todeposit money, upon which her mother had shown resentment.

She had accompanied the accused on various occasions thereafter

also but did not tell her parents about the same as the accused

had forbidden her from doing so. She deposed that accused had

solemni8ed 3i5ah with her at the house of her parental aunt on the

same day i.e. !&.$.!&1! and it was a 9riday. She did not visit the

ban5 alongwith accused on any day after !&.$.!&1!. She could nottell since when they have not paid rent to their landlord. She

denied that a suit for possession has been filed by the accuseds

father against them and they are in occupation of the said house

despite the said suit. She admitted having stated in her statement

u/s.1#+ *r.)* that the accused came to their house on &'.1.!&1

and as5ed them to vacate the house and thereafter his brother as

well as his father also reached there and all the three startedbeating her and while leaving they issued threats to her that they

should vacate the house within two days. She further reiterated

that her 3i5ah has been performed with the accused and she

considers herself as his wife. 2owever, she has not filed any legal

proceedings against the accused claiming her rights as his wife.

She denied that on &'.1.!&1 a >uarrel had ta5en place between

her and the accused on the issue of rent as they had neither paid

rent of the house not had vacated the house. She deposed that

she had visited the house of accuseds friend at ;indapur only two

times though she has mentioned in her statement u/s.1#+ *r.)*

-.):/; that accused used to ta5e her to his friends house at

;indapur daily.

1%. The mother of the prosecutri- has been e-amined as

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):+. She deposed that the accused is the son of their landlord andhe used to come to their house to collect rent of the house. She

further deposed that the prosecutri- had told her that the accused

had beaten her and raped her repeatedly. )rosecutri- had also

told her that the accused had 5ept her as his wife. (n the cross

e-amination, she deposed that being illiterate, she does not 5now

about date and month when the accused had beaten and raped

her daughter. She used to sell Mango sha5e on a ehri from " a.m.or ' a.m. upto $ p.m. or " p.m. According to her, the prosecutri-

used to leave for school at $ a.m. and used to return at 1.& p.m.

after which she used to go to tuition classes wherefrom she

returned at about # p.m. She did not 5now whether prosecutri-

had accompanied the accused to any place on any day. She used

to give money to the prosecutri- to deposit the same in her ban5

account in )3;, 7haula uarrel too5 place between them. She could not tell

the date and month when the >uarrel had ta5en place. 2owever,

she was not present in the house at the time of >uarrel. :hen she

returned home on that day, >uarrel was still going on and it was

regarding the rent of house. She did not 5now whether any 3i5ah

has been solemni8ed between the prosecutri- and the accused.

She admitted that they have not vacated the house despite being

told by accuseds father to vacate the same.

1#. (t is a trite law that in cases involving offence of rape,

the accused can be convicted on the basis of sole testimony of the

prosecutri- provided the same appears to be credible and

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trustworthy and inspires confidence of the court. (f for somereason, the court is not inclined to place implicit reliance upon the

testimony of the prosecutri-, it may loo5 for corroboration from

the other evidence on record. Since the accused can be held guilty

on the sole testimony of the prosecutri- and the offence of rape

being a very serious one which entails even life imprisonment, it is

the duty of the court to scrutini8e the testimony of the prosecutri-

very minutely. (t is to be borne in mind that the testimony of theprosecutri- should not suffer from any embellishments or

prevarications and she should >ualify as a sterling witness so that

the court can place reliance and trust upon her testimony. (t is also

to be noted that the li5e every criminal case, in rape case too, it is

the duty of the prosecution, to bring home the guilt of the accused

beyond reasonable doubt and the prosecution never gets relieved

from this burden. The benefit of every doubt must go to theaccused.

1$. (n the instant case, according to the prosecution, the

accused had committed rape upon the prosecutri- for the first

time on 1'.$.!&1! after ma5ing her unconscious by adminstering

some stupefying substance mi-ed in cold drin5.

1". (t is important to note here that the prosecutri- has

not mentioned the date, month and year, on which she was raped

by the accused after ma5ing her unconscious, either in her

complaint -.):/A or in her statement u/s.1#+ *r.)* -.):/;.

The date has been mentioned by the prosecutri- for the first time

in her testimony before this court as 1'.$.!&1!. There is no

e-planation from her as to why she did not mention the date in her

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complaint -.):/A and statement -.):/;. This creates a doubtin the mind of the court regarding veracity of testimony of the

prosecutri- in this regard.

1'. (t has been deposed by the prosecutri- that on

1'.$.!&1!, the accused came to her room at about +.& p.m. or

%.& p.m. when she was alone in the house. Accused was having a

plastic bottle of cold drin5 in his hand and as5ed her to 5eep thesame in the refrigerator. 2e left saying that he would return after

about half an hour or one hour. Accused returned after about half

an hour and as5ed her to bring the cold drin5 bottle and one glass.

2e poured the cold drin5 in the glass and offered it to her. She

consumed the cold drin5 and after about % to # minutes, she was

only semiconscious. Accused too5 her to the room on the second

floor. She became fully conscious after about ! hours and noticedthat she was lying completely nude on the bed and the accused

was besides her in nude condition. She started weeping and told

the accused that she would disclose the incident to her mother.

The accused threatened her that if she narrated the incident to

anybody, he would 5ill her. Thereafter, accused left after saying

that he would ta5e her somewhere else the ne-t day.

!&. Thus according to the deposition of the prosecutri-,

she consumed cold drin5 offered to her by the accused at about %

p.m. or # p.m. whereafter she became unconscious. She regained

consciousness at about " p.m. or ' p.m. (n the cross e-amination,

she has deposed that her mother usually returns home at about "

p.m. or ' p.m. and her sister also returns home from tuition

classes at about # p.m. or #.& p.m. 2er brother Mohsin also used

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to return home at about $ p.m. and another brother 2asim used toreturn home from tuition classes at about % p.m. She has also

deposed that her foster brother Munna had returned home at $.&

p.m. on that day. Therefore, it is evident that the mother, the two

brothers of the prosecutri- and Munna would have returned home

during the period she was unconscious and being se-ually

assaulted by the accused and they would have noticed the

incident. The mother of the prosecutri- appearing as ):+ hasstated nothing about the said incident. 2er two brothers Mohsin

and 2asim as well as her foster brother Munna have not been

e-amined by the prosecution. (t is to be noted that the prosecutri-

has nowhere deposed that her mother and the two brothers

Mohsin and 2asim did not return home on their usual time on

1'.$.!&1!.

!1. 2ad the incident of rape, as alleged by the prosecution

been true, all the aforementioned persons would have noticed and

discovered the prosecutri- as well as the accused together in a

room in nude condition and would have caught the accused red

handed. That not being the case, it is highly unli5ely that any

incident of rape had ta5en place with the prosecutri- on 1'.$.!&1!

as mentioned by her. 9urther the conduct of the prosecutri- also

does not appear to be >uestionable. She used to allow entry to the

accused to her room almost daily at about 1 p.m. when she was

present alone in the house. =n the date of incident also, she did

not refuse entry into her room to the accused. She readily

accepted the cold drin5 bottle from the accused and 5ept the

same in the refrigerator as directed by him. She consumed the

cold drin5, offered to her by the accused, without any hesitation.

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She did not tell the accused to go away as she is alone and herparents are not present in the house. She did not disclose the

incident to any of her family members on that day, though she has

tried to e-plain that the accused had threatened her not to narrate

the incident to anybody or otherwise, he would 5ill her. 2owever,

this is an improvement upon her earlier statement as she did not

mention in her complaint -.):/A that accused had threatened

her. (n that complaint, she has stated that the accused told herthat he loves her and wants to marry her. uent date after the incident of rape.

vidently, the accused had neither forced nor threatened the

prosecutri- to accompany him on !&.$.!&1!. She appeared to be

willing to accompany the accused. She did not inform any of her

family members that she is going for an outing alongwith the

accused. She did not appear to be under any 5ind of fear from the

accused on that day which too is indicative of the fact that she had

not been raped by the accused on the previous date i.e. 1'.$.!&1!

or otherwise she would have shown utmost reluctance and

hesitation in accompanying him on !&.$.!&1!.

SC No.131/13. Page 18 of 24


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!. (t is the case of the prosecution itself that the accusedperformed 3i5ah with the prosecutri- in the house of his paternal

aunt 0;ua in presence of a Molvi on !&.$.!&1!. Thus the

prosecutri- and the accused were legally wedded husband and

wife from !&.$.!&1! and the physical relations between the two

thereafter, even if against the consent of the prosecutri-, do not

tantamount to offence of rape. The prosecutri- has herself

deposed in her e-amination in chief that the accused performed3i5ah with her on !&.$.!&1!. Thereafter when he told her to go

home, she as5ed him why she should go home when their 3i5ah

has been performed and she should stay in his house only, upon

which the accused told her that she would have to go home for

some period of time, during which he would arrange

accommodation on rent and then they would start residing there

together. She has reiterated in her cross e-amination that her3i5ah has been performed with the accused and she considers

herself as his wife. (n view of said clearcut statement of the

prosecutri-, there is no difficulty to hold that the se-ual

intercourse between her and the accused after !&.$.!&1! does not

come within the ambit of offence of rape.

!+. ( may note here that the accused has denied that he

was with the prosecutri- on !&.$.!&1! or had solemni8ed 3i5ah

with her. There is no evidence on record regarding the 3i5ah

between prosecutri- and accused e-cept the statement of

prosecutri-. The Moulvi who performed the 3i5ah has not been

found out and e-amined as a witness. 3o in>uiries appear to have

been made by the (= from the paternal aunt 0;ua of accused in

whose house, the 3i5ah is stated to have been solemni8ed. She

SC No.131/13. Page 19 of 24


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has not been produced as a witness. The (= has made no attemptto locate that house where the 3i5ah is stated to have been

solemni8ed. ven the fact that the accused was with the

prosecutri- on !&.$.!&1! is doubtful. The prosecutri- has deposed

in her cross e-amination that her brother 2asim was present in the

house, when she left alongwith accused on !&.$.!&1! at ".& a.m.

(ntriguingly, 2asim has not been e-amined as a witness. She then

deposed that she alongwith the accused has gone to )3;,3ana5pura also on that day to deposit money in her ban5 account

which had been given to her by her mother. 2owever, the

statement of account of the prosecutri-s ban5 account -.7:1/A

proved by 7:1 shows that no money was deposited in the said

account on !&.$.!&1!. A sum of s.1%,&&&/4 in cash has been

deposited in it on !.$.!&1!. Thus the version of prosecutri-

regarding the events dated !&.$.!&1! including solemni8ation of3i5ah with the accused appears to be unconvincing and doubtful.

The fact that the prosecutri- did not reveal the factum of 3i5ah to

her family members, also ma5es her version unbelievable.

!%. 2ence it is important to determine whether the

prosecutri- and accused had indulged in physical relations on or

after !&.$.!&1! and if so, whether those were consensual or

against the consent of the prosecutri-.

!#. ven if it is assumed that no 3i5ah was performed

between the prosecutri- and the accused on !&.$.!&1! still ( do

not find any convincing evidence on record to demonstrate that

the accused had raped her on or after !&.$.!&1!. The prosecutri-

has deposed that after the performance of 3i5ah on !&.$.!&1! the

SC No.131/13. Page 20 of 24


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accused too5 her to his home where he raped her % or # timesduring the period of two hours and then told her to go home. (t

seems to be a very vague statement and therefore, absolutely not

reliable or believable. She does not say who else was present in

the house of the accused at that time and what was their reaction

when she entered the house alongwith accused. :hether they

declared the factum of 3i5ah to the family members of the

accused present there at that time. She does not say whether theacts of se-ual intercourse were forcible or she simply subjected

her body to the accused on the belief that she is her wife. 9urther

she has not shown to the (nvestigating =fficer the room in the

house of the accused where he had raped her on !&.$.!&1! and

hence the site plan of the said room has not been prepared by the

(=. (n view of these discrepancies, it is very difficult to believe that

the accused had raped the prosecutri- on !&.$.!&1!.

!$. The prosecutri- has further deposed that the accused

used to ta5e her to the house of her friend at ;indapur where also

he raped her. This too appears to be one line vague statement.

She has not e-plained whether she had accompanied the accused

on those occasions voluntarily or the accused had forced her to

accompany him. She has not stated anything about these

incidents of rape in her complaint to the police -.):/A. (n the

statement u/s.1#+ *r.)* -.):/; she has stated for the first time

that accused used to ta5e her to the house of his friend at

;indapur daily where he used to have se-ual intercourse with her.

Apparently, these incidents of se-ual intercourse appear to be

consensual. (n the cross e-amination, she has deposed that the

accused too5 her to his friends house at ;indapur only two times.

SC No.131/13. Page 21 of 24


22/24

The prosecutri- did not show that house to the (nvestigating=fficer and she has not e-plained any reason for the same. That

friend of the accused has not been interrogated by the police.

*onsidering the overall circumstances, the deposition of the

prosecutri- in this regard does not appear to be credible and

trustworthy and it is very difficult to believe that the accused had

raped her in his friends house at ;indapur.

!". (t is very intriguing that the prosecutri- did not reveal

to her parents and brothers that she had performed 3i5ah with the

accused, when she was neither any threat or any pressure from

the accused in this regard. (n fact the reason for filing complaint

against the accused on &'.1.!&1 does not appear to be that

accused was avoiding to ta5e her into matrimonial fold despite

3i5ah.

!'. The defence put forth by the accused right from the

beginning is that the prosecutri- has lodged a false complaint as

they neither intended to pay the rent of the house to his father nor

wanted to vacate the house. Accuseds father appearing as 7:!

has reiterated the same. This defence ta5en by the accused

appears to be probable and plausible. Admittedly, the family of the

prosecutri- is residing as tenant in the house of prosecutri-s

father and have not paid rent for a very long time and have not

vacated the same despite being as5ed to do so.

&. (t has also come in the cross e-amination of

prosecutri- that she had gone to the house of one 3iyamat for the

settlement tal5s with accuseds brother and father. She has

SC No.131/13. Page 22 of 24


23/24

avoided straight answers to the >uestions as to if said meetingwas arranged by her friend Seema at her instance and if Seema

too was present in the meeting. This coupled with the fact that she

had gone there alone without informing anybody at her home and

the fact that she didnt 5now 3iyamat before that date indicate

that the meeting was arranged at her instance by Seema as she

wanted some settlement with the accused.

1. 2aving regard to the nature of testimony of the

prosecutri- as discussed herein above and the defence put forth

by the accused, which stands corroborated by the testimony of

7:!, this court is not inclined to believe the version of the

prosecution. The testimony of the prosecutri- is suspicious and far

from being credible or trustworthy. The defence of the accused

seems to be more probable. The Supreme *ourt has way bac5 inthe year !&&$ in R#8! >$. S*#*" o+ 0.P., &%% 1& SCC

while holding that where the testimony of the victim is discrepant,

the benefit of doubt has to be given to the accused, further

observed as under D

EThe courts should, at the same time, bear in mind

that false charges of rape are not uncommon. There

have also been rare instance where a parent has

persuaded a gullible or obedient daughter to ma5e a

false charge of rape either to ta5e revenge or e-tort

money or to get rid of financial liability. :hether there

was rape or not would depend ultimately on the facts

and circumstances of each case.F

SC No.131/13. Page 23 of 24


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!. uitted of all the

charges.

Anno!n:"8 in o6"n (VIRENDER BHAT)Co!2* on %.5.&%1'. A88-. S"$$ion$ J!8;"(S6":i#- F#$* T2#: Co!2*)D#2# Co!2*$, N" D"-i.

Documents

State v Aftab Alam (Marital Rape)