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

The case in brief

According to the prosecution case, the informant (the victim’s father) filed a written report on July 23, 2004, stating that the accused, Kasim, had seduced his 16-year-old minor daughter (the Victim) on June 17, 2004.

The investigation continued and finally the victim was recovered on August 8, 2004. She stated that the accused (Preetam, Kasim and Lala @ Shakir) first abducted her after which she was taken to various places including at the residence of the sisters. of Kasim (Shahjahan and Gulshan) and was sexually assaulted.

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

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

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

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

We recommend: Sections 363, 366 376(g) IPC (Life Span)

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

Kasim: Sections 363, 366 376(g) IPC (Life Term)

Challenging their conviction, the accused persons moved the HC, in which it was contended that the victim, a major, had joined the company of the accused, Preetam and Kasim, on his own account.

It was also alleged that the FIR, filed with a delay of more than a month, was intentional as the victim herself was involved in a case of kidnapping of a minor child.

Thus, it was argued that she lodged the FIR only to get out of the said criminal case and to fabricate an excuse for her in the criminal case filed against her.

Finally, it was also argued that her conduct did not report the rape incident to anyone. However, she traveled to several places with public transport, revealing the prosecutor’s falsehood.

On the other hand, the AGA, for the State, submitted that the FIR lodged against the victim in Delhi (for kidnapping a minor boy) was a separate and distinct offense which has no relevance to the prosecution lodged against the accused-appellants in the case of girl.

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

Observations of the High Court

Hearing the arguments of the lawyers of both parties, the Court noted that, according to the doctor’s radiological report, the victim was over 18 years old at the time of the incident.

The court said that this doctor’s evidence clearly demolished the prosecution case of a minority of victims at the time of the incident.

Next, regarding the case of the kidnapping of a minor boy, the Court noted that on the same day that the victim was recovered, the kidnapped child was also found in the same sector, and this coincidence raised suspicions, especially since the victim was involved as one accused of kidnapping by the child’s mother.

The Court also considered this, although the victim claimed that she was physically assaulted by the accused and force was applied. However, the medical evidence on record did not support her version.

In this context, the Court refused to grant the victim excellent witness status as it neither found her statement to be credible nor was it supported by medical evidence on record.

The Court also observed that a distinct objective of falsely implicating the accused persons was being achieved as implicating the accused persons would constitute a defense to the victim in the offense of kidnapping filed against her at Delhi.

“We also find that the victim at every stage of the trial i.e. in the investigation as well as in the trial has brought out the circumstances under which she was compelled by the accused appellants to take part in the crime of kidnapping. Her statement clearly gives the impression that framing her defense for the Delhi abduction case was always weighing on her mind when she made her statement in this case either to the investigating officer or while making a statement in the court.“, noted the Court.

In this perspective of the case, the Court found grounds in the claim invoked on behalf of the appellants according to which the accusation against the accused of luring the victim or subjecting her to sexual assault was, in fact, a cover-up and was meant to create a vindication for the victim in the criminal case against her in Delhi courts.

“We cannot rule out the possibility that the victim herself is an accomplice“, the Court also observed.

By this, the defendant’s conviction was annulled, and their appeals were admitted.

Apparitions

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

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

AGM Archana Singh He appeared for the state

Case Title – Shahjahan and others Vs. State of UP and connected appeals

Case Citation:

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