The Allahabad High Court has acquitted seven accused in the 2004 Rape and Kidnapping Case of Minor observing that the possibility of the victim being a Partner in Crime herself cannot be ruled out.

The Court was considering an Appeal against conviction and sentencing of the appellants under Sections 363, 366, 368 & 376(g) I.P.C.

The division-bench of Justice Ashwani Kumar Mishra and Justice Gautam Chowdhary observed, " There is otherwise a distinct object to be served for her to falsely implicate the accused persons, inasmuch as the implication of the accused persons would clearly 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 statement in the Court...........We cannot discard the possibility of the victim herself being a partner in crime. The appellants argument in this regard cannot entirely be ruled out."

The Appellants were represented by Advocate D.K. Dewan while the Respondent was represented by Govt. Advocate Surendra Prasad Mishra.

The Prosecution's case was that informant in the case who is the father of the victim, in July 2004 lodged report of her 16 years old minor daughter being enticed by the main accused and thereupon investigation was lodged into the same. The victim was later recovered in August 2004 and her statements were recorded wherein she described abduction by the accused persons and sexual assault faced by her from their hands. In the deposition, she mentioned about the alleged attempt on part of the accused persons to involve her in kidnapping of a minor child which she refused she didn't succumb to and refused to participate. The accused persons ultimately were convicted in the matter. Therefore, the present appeal.

On behalf of the appellants, it is submitted that the prosecution case is wholly improbable and that the victim had joined the company of the accused persons on her own. It was also urged that the delay of more than a month in lodging of the FIR has not been explained by the informant. Counsel for the Appellants emphatically argued that the lodging of the FIR was purposive in as much as the victim herself was implicated in a case of kidnapping of minor child and only with the intent to wriggle out of said criminal case and to invent excuse for her in the criminal proceedings lodged against her that the FIR has been lodged in the present case. It was also argued that medical evidence clearly proves that the victim was major and there are no internal or external injury on her. Testimony of the victim was relied upon to state that her conduct in not reporting the incident of rape to anyone though she travelled to multiple places by public transport, exposes the falsity of the prosecutrix.

On the other hand, A.G.A., stated that the FIR lodged against the victim at Delhi is a separate and a distinct crime which has no relevance for the criminal prosecution lodged against the accused appellants in the present case. It was moreover submitted that the victim has been consistent in implicating the accused persons and there was no reason to disbelieve her version. It was further argued that the trial court has evaluated the evidence on its merits and there is no perversity or illegality therein which may require this Court to interfere in the matter.

The Court noted that at first, it is required to consider as to whether the victim on the date of incident was minor or major as the issue assumes significance in view of the settled legal position that the consent of a minor would be immaterial.

It noted that there is no certificate of municipality nor any school record to prove the minority of the victim while the radiological report of the doctor clearly shows the victim to be above 18 years of age.

"This evidence clearly demolishes the prosecution case with regard to minority of the victim on the date of incident. We cannot approve the finding of the trial court that the victim was minor when the only evidence in respect of age of the victim is the doctor’s report which categorically shows the victim to be major. When the evidence on the aspect of age is analysed in terms of Section 94 of the Juvenile Justices Act, we find that the victim cannot be treated to be minor and has to be held major on the date of incident," the court observed.

It, however noted that ordinarily, some delay in reporting the cases of sexual offences are not to be frowned upon by the court as usually the parents suppress such incident for protecting the prestige of the family and the victim but the delay in the facts of the present case has a different connotation altogether

The Court went on to cast aspersion on victim for potentially fabricating a false case against the accused persons.

"The victim in her statement before the court has clearly admitted that she was implicated in a case of kidnapping of a minor child by one Smt. Imrani at Delhi. The testimony of the victim reveals that an FIR against her was lodged in Delhi in the month of July, 2004. It is also admitted on record that on the very day, when the victim was recovered from Nehtaur, the kidnapped child at Delhi was also recovered on the pointing out of one of the accused Kasim from Bijnor. The fact that the child kidnapped in Delhi was recovered from the district where the victim was also recovered on the same date cannot be a matter of co-incidence. This is particularly so when the victim herself is implicated as an accused by the mother of the minor child," the court observed.

The Court pointed towards more material which calls for disbelieving her version of the story.

"Though, the victim has alleged that she was physically assaulted and that she was at one stage attacked with knife and on another occasion her hand and fingers were pressed with a plier (plas) suggesting that force was applied on her, but such version of the victim is not supported by the medical evidence placed on record. The victim otherwise is a major lady, who is found to be above 18 years of age and the fact that she remained with the accused persons for almost two months and made no complaint in that regard, is also a circumstance to be kept in mind. Though, the victim has attempted to explain this circumstance by stating that she was often intoxicated by the accused persons but except for the version of the victim, no other evidence is brought on record by the prosecution. The medical evidence does not support intoxication of victim for months together. We are not convinced from the explanation put-forth by the victim that she was every time intoxicated, as a result of which she could not raise any grievance. The victim admits that she was taken by public transport to long distances, where presence of large number of persons cannot be ruled out. Even otherwise, if a young lady is found intoxicated in a public transport, some suspicion is likely to arise amongst the co-travellers and the possibility that such fact would go unnoticed, is rather remote. The explanation that such version of the victim was merely an excuse to cover up the non-raising of protest by her, is a distinct possibility," the Court observed.

The Court was of the view that Victim could potentially have acted to fulfill her 'distinct object' to falsely implicate the accused persons.

"In the present case, we are not inclined to accord the status of a sterling witness to be victim of the present case, as we find that neither her statement appears to be credible nor is supported by medical evidence on record. There is otherwise a distinct object to be served for her to falsely implicate the accused persons, inasmuch as the implication of the accused persons would clearly constitute a defence for the victim in the offence of the kidnapping lodged against her at Delhi," the court observed.

Cause Title: Shahjahan And Others vs State of Uttar Pradesh (2024:AHC:181692-DB)

Appearances:

Appellants- Advocate D.K. Dewan, Advocate Afzal Ahmad, Advocate Irshad Ahmad, Advocate S.K. Mishra, Advocate Mukhtar Alam, Advocate

Respondent- A.G.A.

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Sheetal Joon