Allahabad High Court: In a batch of criminal appeals arising out of a judgment and order of conviction and sentence passed by the Trial Court against the convicts under Sections 363, 366, 368 and 376(g) of the Penal code, 1860 (‘IPC’), the division bench of Ashwani Kumar Mishra* and Dr Gautam Chowdhary, JJ., acquitted seven convicts who were convicted in connection with a July 2004 case of kidnapping and rape of a minor girl. The Court observed the victim was herself implicated in a separate kidnapping case involving a minor boy, and the Court found that the allegations against the accused were part of an effort to shield her from liability in that case.
Background:
On 28-07-2004, the victim’s father lodged a missing person report that his 16-year-old daughter was enticed and kidnapped by convicts 2 and 4 as witnessed by two people on 17-06-2004. On 08-08-2004, the victim was recovered, and she disclosed how she was kidnapped by the convicts and taken to different places where she was raped and kept in captivity, but she managed to report it. She also stated that convicts 2 and 4 attempted to kidnap a minor child in Delhi and that she was forced to participate in it. The missing child was also recovered after convict 4 pointed out the house of a man to whom the child was allegedly sold for Rs. 25,000.
Holding that the prosecution has successfully established the charge against the convicts, the Trial Court passed the conviction order and sentenced them under Sections 363, 366, 368 and 376(g) of IPC.
Analysis:
Regarding the contention of whether the victim was minor or major on the date of the incident, the Court stated that the onus is upon the prosecution to establish that the victim on the date of the incident was minor. The Court noted that the only evidence brought on record to prove the victim’s minority is the statement of her father. There is, however, no municipality certificate nor any school record to prove her minority. The only evidence on record concerning her age is the medical report based on the X-ray of the victim. The Court noted that this radiological report clearly shows the victim to be above 18 years of age. In fact, the doctor who examined the victim stated in her cross-examination that the victim could be above 20 years of age.
Noting the aforementioned, the Court stated that this evidence demolishes the prosecution case regarding the victim’s minority, and it cannot approve the Trial Court’s finding that the victim was minor when the only evidence regarding the victim’s age is the medical report which categorically shows the victim to be major. The Court held that the victim has to be treated as major on the date of the incident.
Noting that there was a delay of a month between the disappearance of the victim and the lodging of the complaint, the Court stated that ordinarily, some delay in reporting the cases of sexual offences is 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 noted that the victim in her statement before the court has admitted that she was implicated in a case of kidnapping of a minor child. The Court stated that 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 coincidence, especially when the victim herself is implicated as an accused by the mother of the kidnapped child.
A contention raised by the convicts was that the victim is a partner in crime in the offence of kidnapping along with other accused and is now trying to distance herself by filing this case against them.
The Court noted that the victim, being a major woman, had remained with the convicts for almost two months without lodging any complaints about her situation. The victim stated that she was often intoxicated by the convicts, but apart from her own testimony, there was no supporting evidence, and the medical report did not corroborate her claims. The Court found the explanation that the victim was intoxicated every time and thus unable to raise any grievances unconvincing.
Furthermore, the Court pointed out that the victim admitted to being transported over long distances by public transport, where the presence of many people could not be ruled out.
The Court observed that if a young woman were found intoxicated on public transport, it would likely raise suspicion among fellow passengers, making it improbable that such a situation would go unnoticed. In light of this, the Court suggested that the victim’s explanation might merely serve as an excuse to cover up her failure to protest, and that this possibility could not be ruled out.
Since there is no corroboration of the version of events of the victim, the Court examined whether, on the strength of the solitary testimony of the victim, the conviction could be sustained.
The Court stated that it is not inclined to accord the status of a sterling witness to the victim of the present case, as neither her statement appears to be credible nor is it supported by medical evidence on record. There is otherwise a distinct object to be served for her to falsely implicate the convictssince their implication would constitute a defence for the victim in the offence of the kidnapping lodged against her at Delhi. The Court found that the victim at every stage of the proceedings has been highlighting the circumstances in which she was compelled by the convicts to take part in the offence of kidnapping. Her testimony clearly conveys an impression that creating her defence for the kidnapping case was always weighing on her when she made her statements in this case.
In that view of the matter, the Court found substance in the submission of the convicts that the allegation against them of having enticed the victim and subjected her to sexual assault was a cover-up and was intended to create a justification for the victim in the criminal proceedings instituted against her in Delhi. The Court held that it cannot discard the possibility of the victim herself being a partner in crime and the argument of the convicts in this regard cannot entirely be ruled out.
Consequently, the Court held that the conviction and sentence of all the convicts vide the impugned judgment is unsustainable and it was set aside thereby acquitting all of them.
[Smt Shahjahan v. State of UP, 2024 SCC OnLine All 7090, decided on 21-11-2024]
*Order authored by: Justice Ashwani Kumar Mishra
Advocates who appeared in this case:
For the appellant: D.K. Dewan, Afzal Ahmad, Irshad Ahmad
For the respondent: Surendra Prasad Mishra, Government Advocate
Buy Penal Code, 1860 HERE
