Possibility Of Victim Herself Being A Partner In Crime: Allahabad High Court Acquits 7 Convicts In 2004 'Minor' Kidnapping, Rape Case

A bench of Justice Ashwani Kumar Mishra and Justice Dr Gautam Chowdhary refused to accord the status of a sterling witness to a victim, finding that neither her statement was credible nor the same was supported by medical evidence on record.

The case in brief

As per the prosecution's case, the Informant (father of the victim) lodged a written report on July 23, 2004, stating that the accused, Kasim, had enticed his 16-year-old minor daughter (Victim) on June 17, 2004.

The investigation proceeded, and ultimately, the victim was recovered on August 8, 2004. She deposed that the accused persons (Preetam, Kasim and Lala @ Shakir) first abducted her, whereafter she was taken to different places, including at the residences of sisters of Kasim (Shahjahan and Gulshan) and was subjected to sexual assault.

She also deposed about the attempt by the two accused (Preetam and Kasim) to kidnap a minor child in Delhi, and that she (the victim) was compelled by these two accused to participate in it and that, in fact, she had not participated in this part of the crime.

The first charge sheet was submitted on September 30, 2004, against the accused Kasim, Preetam, Lala @ Shakir under Sections 363, 366, 368 & 376(g) IPC.

A subsequent charge sheet was filed against Ajijur Rehman, Smt. Shahjahan, Javed, and Smt. Gulshan. Charges were framed against the accused applicants under Sections 363, 366, 368, and 376 IPC.

Ultimately, all the accused were convicted by the trial court as per the following details:

Ayyub and Lala @ Shakir: Sections 363, 366 [10-year RI]

Preetam: Sections 363, 366 376(g) IPC [Life Term]

Smt. Shahjahan, Smt. Gulshan and Javed: 368 IPC [10 Year RI]

Kasim: Sections 363, 366 376(g) IPC [Life term]

Challenging their conviction, the accused persons moved the HC, wherein it was argued that the victim, a major, had joined the company of the accused, Preetam and Kasim, on her own.

It was also contended that the FIR, filed with a delay of more than one month, was purposive since the victim herself was implicated in a case of the kidnapping of a minor child.

Thus, it was submitted that she had lodged the FIR only to wriggle out of said criminal case and invent an excuse for her in the criminal proceedings lodged against her.

Lastly, it was also argued that her conduct in not reporting the incident of rape to anyone. However, she travelled to multiple places by public transport, exposing the falsity of the prosecutrix.

On the other hand, the AGA, for the state, submitted that the FIR lodged against the victim at Delhi (for kidnapping a minor boy) was a separate and distinct crime which has no relevance for the criminal prosecution lodged against the accused-appellants in the present case.

It was also argued that the victim had consistently implicated the accused persons, and there was no reason to disbelieve her version.

High Court's observations

Having heard the submissions of the counsels for both sides, the Court noted that, as per the doctor's radiological report, the victim was above 18 years of age at the time of the incident.

The Court said that this doctor's evidence clearly demolished the prosecution case regarding a minority of the victims on the date of the incident.

Further, regarding the kidnapping case of a minor boy, the Court noted that on the same day when the victim was recovered, the kidnapped child was also found in the same district, and this coincidence raised suspicions, especially since the victim was implicated as an accused of kidnapping by the child's mother.

The Court also factored in that, though the victim had alleged that she was physically assaulted by the accused and force was applied to her. However, the medical evidence on record did not support her version.

Against this backdrop, the Court refused to accord the victim the status of a sterling witness as it neither found her statement credible nor supported by medical evidence on record.

The Court also observed that a distinct object was being achieved to falsely implicate the accused persons since the implication of the accused persons would constitute a defence for the victim in the offence of the kidnapping lodged against her at Delhi.

“We also find that the victim at every stage of the proceedings i.e. investigation as well as trial has been highlighting the circumstances in which she was compelled by the accused appellants to take part in the offence of kidnapping. Her statement clearly conveys an impression that creating her defence for the kidnapping case at Delhi was always weighing with her when she made her statement in this case either to the Investigating Officer or while making a statement in the Court,” the Court remarked.

In that view of the matter, the Court found substance in the submission advanced on behalf of the appellants that the allegation against the accused persons of having enticed the victim or subjected her to sexual assault was, in fact, a cover-up and was intended to create a justification for the victim in the criminal proceedings instituted against her in the courts at Delhi.

“We cannot discard the possibility of the victim herself being a partner in crime”, the Court further observed.

With this, the conviction of the accused person was set aside, and their appeals were allowed.

Appearances

Advocates Mukhtar Alam, Mohd. Naushad Siddiqui, holding the brief of Advocate Irshad Ahamad; Advocate Saquib Mukhtar, holding the brief of Advocate Awes Iqbal, argued for the appellants

Amicus curiae Durgesh Kumar Singh appeared for the appellant-Kasim and

AGA Archana Singh Appeared for the state

Case title - Shahjahan And Others vs. State of U.P. and connected appeals

Case citation:

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