HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 237 of 2023 Appellant :- State of U.P. Respondent :- Maharam And Another Counsel for Appellant :- Shiv Kumar Pal Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
Delay in filing the present appeal has been explained to the satisfaction of the Court. Delay is accordingly condoned.
This appeal is by the state alongwith an application for grant of leave to challenge the judgment and order of acquittal of the accused respondents, dated 30.11.2022, passed by Special Judge (POCSO Act, 2012)/Additional District and Sessions Judge, Aligarh in Session Trial No.1990 of 2020 (State vs. Maharam and another) arising out of Case Crime No.50 of 2020, under Sections 452, 376, 120B IPC and 3/4 read with 16/17 of POCSO Act, Police Station Vijaygarh, District Aligarh.
The victim in this case is the informant who has stated that on 09.07.2020 at 11.00 PM her neighbour (accused Maharam Singh), who used to visit her house earlier, took advantage of darkness and committed sexual assault upon her. On the victim raising an alarm the accused fled. The age of victim has been disclosed as 17 years. On the basis of such information given on 10.07.2020 at 12.58 PM the First Information Report got registered as Case Crime No.50 of 2020 under Sections 376 IPC and 7/8 of POCSO Act and ultimately after investigation charge sheet was submitted against the accused Maharam and mother of the victim herself. The charge against the mother of victim was under section 120B IPC. The charges were framed against the accused, which they denied and the trial commenced.
During course of the trial, high school certificate of the victim was produced as per which on the date of incident the age of victim was 17 years 3 months 23 days. There is no other material to demonstrate that the age of victim was above 18 years. The trial court, therefore, has returned a finding on the first issue that the victim was a minor on the date of incident. The second issue framed by the trial court was with regard to alleged commissioning of offence wherein the trial court has noticed that the medical examination of victim does not demonstrate any external or internal injury upon her. The statement of victim that she sustained bite marks on her cheek and also sustained injuries on her private part, which was bleeding, has thus not found corroboration from the medical evidence. The victim during trial has asserted that FIR was lodged after two days which was not found to be the fact since the FIR was lodged the very next day of the incident. The brother of victim (PW-5) has also been examined, who has stated that he has not seen the incident and only on the statement of victim this witness has supported the prosecution case. He has denied the suggestion that in fact the victim was caught with one Dushyant and later with an intent to save herself she came out with a false narration of incident. Trial Court has also taken note of the fact that the mother of victim was in the house and had not objected to the incident of sexual assault upon her minor daughter. This, according to the trial court, generated some doubt upon the prosecution case.
In her statement under section 164 Cr.P.C. the victim had implicated her mother also on the ground that she colluded with accused Maharam. It has also been found that the brother of victim as well as the tenants, who were present in the house have not been referred to by the victim in her statement under section 164 Cr.P.C. From the statement of PW-5 it has also come on record that in fact parents of victim were not present in the house and, therefore, the statement of victim that mother has connived with main accused has been doubted. Trial court has also doubted the prosecution case on the ground that no explanation has been furnished as to how the door was opened when it is admitted that the victim had gone to sleep after bolting the door from inside. In his statement under section 313 Cr.P.C. the accused has stated that the victim was found in a compromising position with one Dushyant and in order to save herself a false case has been setup by the victim. On the basis of cumulative assessment of evidence so lead during trial the court below has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The primary reason for arriving at such a conclusion is that the medical examination does not support the commissioning of alleged offence and the statement of victim that she sustained bite marks on her cheek and also sustained injuries on her private part is not substantiated in medical report. Both these allegations have been found incorrect in the medical examination.
We have been taken through the judgment by the learned AGA, who submits that the trial court has not appreciated the evidence in correct perspective and that the findings returned by the court below are perverse.
We have carefully examined the judgment of the court below and upon its examination we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, which may persuade this Court to grant leave to assail the judgment of acquittal. Prayer made by the State for grant of leave is, accordingly, refused and the appeal, consequently, fails and is dismissed.
Order Date :- 1.5.2023 Ashok Kr.