Gulsher Ahmad & Others vs State Of H.P

Vivek Singh Thakur, J

Applicants/applicants Gulsher Ahmad, Nazeer Ahmad and Haneef in this application, were accused-respondents No. 4, 5 and 6, in Sessions Trial No. 39 of 2019. They have been convicted along with other co-accused under Sections 368, 342 of the Indian Penal Code (for short IPC) and Section 17 of the Protection of Children From Sexual Offences Act, 2012 (for short POCSO Act) to undergo rigorous imprisonment for a period of 5 years and to pay fine of ₹10,000/- and for default in payment of fine to undergo further rigorous imprisonment for further period of 5 months under Section 368 IPC; rigorous imprisonment for a period of 6 months and to pay fine of ₹500/- and for default in payment of fine to undergo further rigorous imprisonment for further period of 15 days under Section 342 IPC; rigorous imprisonment for a period of 10 years and to pay fine of ₹20,000/-and for default in payment of fine to undergo further rigorous imprisonment for further period of 1 year under Section 17 of POCSO Act.

It has been submitted by learned counsel for the applicants that applicants Gulsher Ahmad, Haneef and Nazeer Ahmad are respectivelly 50, 67 and 63 years old persons and they have no role in alleged commission of offence, if any, committed by other accused. According to learned counsel for the applicants, there is no evidence linking the applicants with the alleged commission of offence, as also evident from the deposition of PW-14 victim and other material on record.

Prosecution case is that co-accused Taliv Hussain allured and enticed minor victim (PW-14) by advancing false promise of marriage and in September, 2019 he called the victim to his residential quarter during day time and after locking the door, violated her person and when victim screamed, he gagged her mouth with his hand and thereafter, on opening the door by Taliv Hussain, victim ran away to her home, but did not tell the incident to anyone out of fear and social stigma. On 14.10.2019, he kidnapped the victim from Pangi and took her to his mother Khurshid Begum at Ballu Chamba. On 15.10.2019 accused Taliv Hussain, Khurshid Begum and Mohammad Azad, (maternal uncle of accused Taliv Hussain) took the victim to the office of Advocate Vinod Bhardwaj and requested him to get Taliv Hussain and victim married in the Court. After verification through Aadhar Card, Advocate Vinod Bhardwaj found that victim was minor and, therefore, legally marriage of Taliv Hussain and victim could not be solemnized, and accordingly he advised Taliv Hussain, Khurshid Begum and Mohammad Azad to send the victim back to her home. However, accused Taliv Hussain, Khurshid Begum and Mohammad Azad did not do so and victim was taken by them from Chamba to a secluded residential house of their relatives, i.e. present applicants/appellants 1 to 3 in village Banni and Kagrod in District Kathua J&K, and village Pred in District Chamba.

According to prosecution story, Taliv Hussain had disclosed to Gulsher Ahmad (applicant herein) that victim was minor at that time. Applicant Gulsher Ahmad joined the company with co-accused Taliv Hussain, Khurshid Begum and Mohammad Azad and kept the victim in his house on 15.10.2019 and 16.10.2019. On 17.10.2019, she was shifted to the house of applicant Haneef. Applicant Haneef was also told about the victim being minor and thus incapable of getting married for two months. On 17.10.2019 and 18.10.2019 victim was kept in the quarter of applicant No. 3 Haneef. On 19.10.2019 accused Taliv Hussain, Khurshid Begum and Mohammad Azad took the victim to residential house of their relative appellant No. 2 Nazeer Ahmad, who was also informed that victim was minor and she had been brought from Pangi and after two months when she would become major, she would marry to accused Taliv Hussain. Nazeer Ahmad also joined the company and give shelter to accused Taliv Hussain and victim in his house on 19.10.2019 and kept the victim concealed.

On 20.10.2019 accused Khurshid Begum and Mohammad Azad returned to their places and on 21.10.2019 during night time accused Taliv Hussain forcibly violated the victim in residential house of appellant/applicant Nazeer Ahmad. On 22.10.2019 Police recovered the victim from the residential house of applicant Nazeer Ahmad.

Statement of the victim was recorded under Section 161 Cr.P.C. and was also video graphed. Case was registered under Sections 342, 376 of IPC and Section 4 of POCSO Act. A case was also registered under Section 368 of IPC and Section 17 of POCSO Act against relatives of accused Taliv Hussain being party to conspiracy and taking and giving shelter to main accused in their houses and helping him.

In deposition in the Court victim has re-iterated the entire story, by identifying applicants/appellants by pointing finger towards them in the Court with assertion in deposition that she was kept in the houses of Gulsher Ahmad, Haneef and Nazeer Ahmad with further deposition that Taliv Hussain had disclosed to Gulsher Ahmad, Nazeer Ahmad and Haneef that at that time victim was minor. Her statement under Section 164 Cr.P.C. was also recorded. Aforesaid statement of the victim has not been disputed. There is not even a single suggestion to the victim that applicants were not aware about her age and they had allowed accused Taliv Hussain and victim to stay in their houses innocently.

In statements of applicants recorded under Section 313 Cr.P.C. also, applicants have expressed ignorance about the reason for arraying them as accused with explanation that false case had been made against them, by stating that witnesses had falsely deposed against them, but they were not aware why witnesses deposed against them. It has been further asserted by applicants that they were innocent and had not committed any offence. Rest response to the statement under Section 313 Cr.P.C. is denial of the entire prosecution story by stating that it was incorrect. They were being represented by one and the same Advocate. No where defence has been taken that they were not disclosed age of the victim or they did not give shelter to accused Taliv Hussain, Khurshid Begum and Mohammad Azad, and allowed Taliv Hussain and victim to stay in their houses. Rather in cross-examination victim had stated that they traveled to a place Kagrod in a bus alongwith Talib Hussain, Khurshid and Azad. No where it has been suggested that she was not taken to villages Bani, Pred and Kagrod, which are villages of applicants Gulsher Ahmad, Haneef and Nazeer Ahmad, respectively. For aforesaid material on record plea raised by the applicants that they were not aware about the age of minor as well as they had not given shelter to Taliv Hussan, prima facie, appears to be contrary to record.

In Section 16 of POCSO Act in third clause, it has been provided that who intentionally aids, by any act or illegal omission, the doing of that offence, is a person who abets an offence. Explanation-II in this Section provides that whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. In present case it has come on record that after knowing that victim was minor, applicants gave shelter to Taliv Hussain to keep the minor with him in their houses. Thus their act and illegal omission to report to the concerned authority or Police about kidnapping of minor, but instead allowed them to take shelter with them, prima facie, indicate that applicants are persons who abets the offence in reference and liable to be punished under Section 17 of the POCSO Act, which provides punishment for abatement with mandate that a person shall be punished for abatement with punishment for that offence, which has been abetted.

In view of aforesaid discussion, we are of the considered opinion that no case is made out to demonstrate that there is fair chance of acquittal of the applicants.

It is made clear that aforesaid discussion has been made for the purpose of adjudication of present application only and it shall have no impact on the merits of the contention of parties at the time of final hearing of the appeal.

For afore discussion, we do not find any merit in the application and accordingly, the application is dismissed.