The Allahabad High Court acquitted seven convicts in 2004 for “minor” kidnapping and rape

Bench with Justice Ashwani Kumar Mishra and Justice Dr. Gautam Chowdhary refused to grant the victim the status of an excellent witness, finding that neither her testimony was credible nor supported by the documentation collected in medical files.

The case in brief

According to the findings of the prosecution, the Informant (victim’s father) submitted a written report on July 23, 2004, in which he stated that accused Kasim lured his 16-year-old minor daughter (Victim) on June 17, 2004.

The investigation continued and the victim was finally found on August 8, 2004. She testified that the accused (Preetam, Kasim and Lala @Shakir) first abducted her, after which they were taken to various places, including: to the homes of Kasima’s sisters (Shahjahan and Gulshan) and became a victim of sexual violence.

She also deposed that the two accused (Preetam and Kasim) had attempted to kidnap a minor child in Delhi and that she (victim) was forced by the two accused to take part in the same and that she was not actually involved in that part of the crime.

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

Another chargesheet was filed against Ajijur Rehman, Smt. Shahjahan, Javed and Smt. Gulshan. Charges were framed against the accused appellants under Sections 363, 366, 368 and 376 of the IPC.

Ultimately, all defendants were convicted by the trial court as follows:

Ayyub and Lala @Shakir: Sections 363, 366 (10-year RI)

Initially: Sections 363, 366 376(g) IPC (lifetime)

smt. Shahjahan, Smt. Gulshan and Javed: 368 IPC (10 Years RI)

Kasim: Sections 363, 366 376(g) IPC (lifetime)

Challenging their verdict, the accused filed an application in the HC in which it was alleged that the victim, a major, had herself joined the company of the accused, Preetam and Kasim.

It was also alleged that the FIR, filed after over a month’s delay, was intentional as the victim herself was involved in a minor child kidnapping case.

In connection with the above, it was deposed that she had lodged the FIR only to escape from the said criminal case and to come up with an excuse for the same in the criminal proceedings pending against her.

Finally, it was also argued that her conduct was in failing to report the rape incident to anyone. However, she traveled to many places by public transport, exposing the prosecutor’s falsehood.

On the other hand, the AGA on behalf of the State held that the FIR lodged against the victim in Delhi (for kidnapping of a minor boy) constitutes a separate and distinct offense which has no bearing on the criminal proceedings initiated against the accused-appellants in the present case.

It was also argued that the victim consistently pointed to the accused persons and there was no reason not to believe her version.

Observations of the Supreme Court

After hearing the statements of both parties’ lawyers, the Court noted that, according to the doctor’s radiological opinion, the victim was over 18 years old at the time of the incident.

The Court found that this doctor’s testimony clearly undermined the prosecutor’s position regarding the minority of victims on the day of the incident.

Furthermore, with regard to the case of the kidnapping of a minor boy, the Court noted that on the same day on which the victim was found, a kidnapped child was also found in the same district and the coincidence aroused suspicion, especially since the victim was involved in a crime accused of kidnapping by her mother child.

The Court also took this into account, although the victim claimed that the accused had physically abused her and used force against her. However, the collected medical documentation did not confirm her version.

In this context, the Court refused to grant the victim perfect witness status because it did not find her testimony credible or supported by the medical evidence in the case file.

The Court also observed that the false aim of falsely indicting the accused was achieved as the inclusion of the accused would constitute a defense of the victim in connection with the offense of kidnapping lodged against him in Delhi.

“We also state that the injured party, at every stage of the proceedings, i.e. the investigation and trial, emphasized the circumstances in which she was forced by the accused appellants to take part in the crime of kidnapping. Her statement clearly gives the impression that her framing of the defense in the Delhi kidnapping case always incriminated her whenever she gave evidence in the case before the investigating officer or while giving evidence in court– noted the Court.

From this point of view, the Court found merit in the contention made on behalf of the appellants that the charge brought against the defendants of luring the victim or subjecting her to sexual violence was in fact cover-up and was intended to create an excuse for the victim in the criminal proceedings initiated against him in the Delhi courts.

“We cannot dismiss the possibility that the victim is himself an accomplice to the crime”, the Court further observed.

Therefore, the defendant’s conviction was quashed and his appeal was allowed.

Performances

Supporters of Mukhtar Alam, Mohd. Naushad Siddiqui, holding brief Attorney Irshad Ahamad; Lawyer Saquib Mukhtar, holding brief Lawyer Awes Iqbal, defended the appellant

amicus curiae Durgesh Kumar Singh appeared on behalf of the appellant-Kasim i

AGA Archana Singh He performed for the state

Case title – Shahjahan et al v. State of UP and related appeals

Quote from the case:

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