State Of U.P. vs Vijay Kumar & Anr.
2021 Latest Caselaw 8675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No.-10
 

 
Case :- U/S 378 CR.P.C. No. - 32 of 2021
 

 
Applicant :- State of U.P.
 
Opposite Party :- Vijay Kumar & Anr.
 
Counsel for Applicant :- G.A.
 

 
Hon'ble Devendra Kumar Upadhyaya, J.

Hon'ble Ajai Kumar Srivastava-I, J.

(Per: Hon'ble Ajai Kumar Srivastava-I, J.)

1. We have heard learned Additional Government Advocate for the State and gone through the record available before us.

2. By means of the present application under Section 378(3) of the Cr.P.C., the State has sought leave to appeal to assail the judgment and order dated 23.12.2020 passed by the learned Additional District & Sessions Judge/Special Judge POCSO Act, District Ambedkarnagar, whereby the learned trial court has acquitted the accused-Vijay Kumar, who is opposite party No.1 in the instant case, for the offence under Sections 363, 366, 376(1), 354 of the I.P.C and Sections 3A/4 of the Protection of Children from Sexual Offences Act, 2012.

3. The case of the prosecution as unfolded during trial is that the first informant-Vinod Kumar Sharma lodged the written report, Ex. Ka-1, at Police Station Ibrahimpur, District Ambedkarnagar on 19.11.2013 stating therein that his niece/victim is aged about 15 years. She is a student of class-10th. On 17.11.2013 at about 11.00 AM, she was abducted by Mangal, Vijay, Ram Sewak, Suraj and Vivek, who are residents of his colony, while the victim was going to attend her tuition. Thereafter, she could not be traced till evening, therefore, by submitting the written report, Ex. Ka-1, the first informant-Vinod Kumar Sharma prayed for taking appropriate action against the guilty persons.

4. On the basis of written report, Ex. Ka-1, lodged by the first informant-Vinod Kumar Sharma an F.I.R., Ex. Ka-11, was lodged on 19.11.2013 at 10:30 AM at Police Station Imbrahimpur, District Ambedkarnagar, under Sections 363, 366 of the I.P.C. against the accused , namely, Mangal, Vijay, Ram Sewak, Suraj and Vivek.

5. During the course of investigation, the Investigating Officer inspected the place of occurrence and prepared the site plans Ex. Ka-5 and Ex. Ka-8 respectively. He also collected underwear, salvaar, transfer certificate and identity card of the victim and prepared recovery memos thereof as Ex. Ka-9, Ex. Ka-6 and Ex. Ka-7 respectively. The victim was medically examined on 26.11.2013 by Dr. Manisha Yadav, PW-4 at Primary Heath Centre, Tanda, District Ambedkarnagar. Details of medical examination are as follows:-

(A) External Examination:-

(i) The victim was fully normal.

(ii)	Height    -	145 Cm.
 
(iii)	Weight    -	37 Kg.
 
(iv)	No mark of injury on external parts of body of the victim was found.
 
(B)	Internal Examination:-
 
(i)	Breasts were developed.
 
(ii)	Hymen was torn with old healed margin.
 
6.	According to X-ray report, Ex. Ka-15, prepared by Dr. P.N. Yadav, PW-6, the wrist joint, knee joint and iliac crest were found to be not fused.
 

7. On the completion of investigation, the Investigating Officer submitted chargesheet, Ex. Ka-10, dated 29.01.2014 against accused, namely, Mangal, Vijay Kumar, Ram Sewak, Suraj Gupta, Vivek and Aamir Khan. However, it appears that the case against accused, namely, Mangal, Suraj, Vivek and Aamir Khan was separated during the trial on account of the fact that they were juvenile.

8. After taking cognizance of the case, charges under Sections 354A, 363, 366, 376(1) of the I.P.C. and Section 4 of the Protection of Children from Sexual Offences Act, 2012 were framed against accused, namely, Vijay Kumar and Ram Sewak to which the accused pleaded not guilty and claimed trial.

9. The case against accused-Ram Sewak was abated during the trial due to his death vide order dated 11.11.2020 passed by learned trial court.

10. In order to bring home guilt of accused beyond reasonable doubt, the prosecution has examined as many as six prosecution witnesses. Vinod Kumar Sharma, PW-1 is the first informant, victim is the PW-2, Pankaj Sharma, PW-3 is an eye witness of the occurrence, Dr. Manisha Yadav, PW-4 is the Medical Officer who had medically examined the victim, Inspector R.P. Singh, PW-5 is the Investigating Officer whereas Dr. P.N. Yadav, PW-6 is the radiologist who had conducted X-ray of right elbow, right knee and iliac crest of the victim.

11. After the closure of prosecution evidence, statements of accused were recorded under Section 313 of the Cr.P.C. They denied the charges levelled against them and stated that they have falsely been implicated in the case. They also stated that the prosecution witnesses are deposing falsely against them.

12. The learned trial court after hearing learned counsel for the parties and after scrutinizing and assessing the evidence available on record, has recorded the finding of acquittal as stated earlier. Hence this application for leave to appeal by the State.

13. Learned A.G.A. has vehemently argued that keeping in view the nature of offence, delay of about two days in lodging the first information report cannot be termed to be inordinate and unexplained delay in lodging the F.I.R. because sufficient explanation has also been offered by the first informant-Vinod Kumar Sharma, PW-1 for the delay caused in lodging the first information report.

14. In addition to the aforesaid submissions, he has also submitted that the findings of acquittal of accused-Vijay Kumar, opposite party No.1 herein, are against the weight of evidence and perverse because the prosecution has been fully successful in proving its case against opposite party No.1-Vijay Kumar beyond reasonable doubt on the basis of evidence available on record.

15. The learned trial court while acquitting the accused-Vijay Kumar has held that the victim is aged about 16 years. Learned trial court has held that the first information report has been lodged after consultation and after a delay of about two days which has not been explained by the prosecution. However, learned trial court has also recorded the findings to the effect that the first informant Vinod Kumar Sharma, PW-1 and Pankaj Sharma, PW-3 though projected to be eye witnesses of the incident, have not actually seen the incident. The victim herself has not attributed any role to the accused-Vijay Kumar, opposite party No.1 in the incident of her abduction, outraging her modesty or for the offence of committing rape on her, therefore, due to aforesaid reasons, the learned trial court has recorded findings of acquittal of accused-Vijay Kumar, opposite party No.1 herein.

16. We have carefully examined and scrutinized the testimony of the first informant, Vinod Kumar Sharma, PW-1, victim, PW-2 and Pankaj Sharma, PW-3 another eye witness of the incident. The first informant-Vinod Kumar Sharma, PW-1 has testified that he saw accused, namely, Mangal, Vijay Kumar, Ram Sewak, Suraj Gupta and Vivek abducting her niece, the victim and taking her away in a Xylo motorcar on 17.11.2013. He has also stated to have chased the accused by taking motorcycle from Satendra Verma, however, he returned from Bashkhari after the said Xylo motorcar disappeared. It is significant to notice that this witness, who is uncle of the victim, did not raise any alarm at the time when he saw her niece being abducted or being taken away by the accused. He has also not informed this fact to any other persons including Satendra Verma from whom he took motorcycle to chase the abductors.

17. On the issue of delay in lodging F.I.R. in such matter, the Hon'ble Supreme Court in Deepak vs. State of Haryana, (2015) 4 SCC 762 in paragraph-15 has held as under:-

"15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] ."

(Emphasis supplied by us)

18. The first informant-Vinod Kumar Sharma in his statement as PW-1 has stated that he lodged the first information report on 19.11.2019 after consultation with others including father of the victim, therefore, in view of the law laid down by the Hon'ble Supreme Court in Deepak's case (supra), the delay in lodging the F.I.R. appears to have been sufficiently explained and the same cannot be a ground to disbelieve the prosecution case.

19. However, the conduct of the first informant-Vinod Kumar Sharma, PW-1 in not raising alarm, when he saw her niece being abducted is quite unnatural. He has categorically stated that the victim was abducted on 17.11.2013 by accused, namely, Mangal, Vijay Kumar, Ram Sewak, Suraj Gupta and Vivek. Pankaj Sharma, PW-3 has also stated to have seen the incident and he has also named the accused-Vijay Kumar, opposite party No.1 herein. However, in his cross-examination, he has clearly stated that the statement of victim to the effect that she, for the first time, met Vijay Kumar while going to the police station and not before, is correct. Admittedly, Pankaj Sharma, PW-3 is victim's cousin, who is, therefore, a related witness. The victim, PW-2 in her statement has not named opposite party No.1-Vijay Kumar. Even in her statement recorded under Section 164 Cr.P.C., she has categorically stated that on 17.11.2013 at about 11:00 AM, she was abducted by Vivek and Mangal only. She has also stated that accused Ram Sewak and opposite party No.1-Vijay Kumar did not outrage her modesty, therefore, from the perusal of statement of the victim, PW-2, it is clear that on 17.11.2013, the victim was abducted by accused Vivek and Mangal only. The first informant-Vinod Kumar Sharma, PW-1 and Pankaj Sharma, PW-3, on the contrary, have stated to have seen all the accused including opposite party No.1-Vijay Kumar on 17.11.2013 when the victim was abducted. This itself, casts serious doubts on the presence of the first informant-Vinod Kumar Sharma, PW-1 and Pankaj Sharma, PW-3 on the spot. It, thus, leads to irresistible conclusion that in fact the first informant-Vinod Kumar Sharma, PW-1 and Pankaj Sharma, PW-3 had not seen the incident of abduction of victim on 17.11.2013. Therefore, the testimony of first informant-Vinod Kumar Sharma, PW-1 and Pankaj Sharma, PW-3, to the effect that Vijay Kumar, opposite party No.1 herein also participated in the commission of crime on 17.11.2013 does not appear to be truthful.

20. The Hon'ble Supreme Court in Krishnegowda and others vs. State of Karnataka by Arkalgud Police, (2017) 13 SCC 98 in paragraphs-32 and 33 has held as under:-

"32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad daylight. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused."

(Emphasis supplied by us)

21. The Hon'ble Supreme Court in Ramesh And Others vs. State of Haryana, (2017) 1 SCC 529 in paragraphs 24, 25 and 26 has held as under:-

"24. We have duly appreciated the submissions advanced by the counsel for the parties on both sides. No doubt, the High Court was dealing with the appeal against the judgment of the trial court which had acquitted the appellants herein. The scope of interference in an appeal against acquittal is undoubtedly narrower than the scope of appeal against conviction. Section 378 of the Code of Criminal Procedure, 1973 confers upon the State a right to prefer an appeal to the High Court against the order of acquittal. At the same time, sub-section (3) thereof mandates that such an appeal is not to be entertained except with the leave of the High Court. Thus, before an appeal is entertained on merits, leave of the High Court is to be obtained which means that normally judgment of acquittal of the trial court is attached a definite value which is not to be ignored by the High Court. In other words, presumption of innocence in favour of an accused gets further fortified or reinforced by an order of acquittal. At the same time, while exercising its appellate power, the High Court is empowered to reappreciate, review and reconsider the evidence before it. However, this exercise is to be undertaken in order to come to an independent conclusion and unless there are substantial and compelling reasons or very strong reasons to differ from the findings of acquittal recorded by the trial court, the High Court, as an appellate court in an appeal against the acquittal, is not supposed to substitute its findings in case the findings recorded by the trial court are equally plausible.

25. The scope of interference by the appellate court in an order of acquittal is beautifully summed up in Sanwat Singh v. State of Rajasthan [Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 : AIR 1961 SC 715 : (1961) 1 Cri LJ 766] in the following words: (AIR pp. 719-20, para 9)

"9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case [Sheo Swarup v. King Emperor, 1934 SCC OnLine PC 42 : (1933-34) 61 IA 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

26. This legal position is reiterated in Govindaraju v. State [Govindaraju v. State, (2012) 4 SCC 722 : (2012) 2 SCC (Cri) 533] and the following passage therefrom needs to be extracted: (SCC p. 732, paras 12-13)

"12. The legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 CrPC. This is an indication that appeal from acquittal is placed on a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 CrPC has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under sub-section (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the courts.

13. Under the scheme of CrPC, acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the appellate court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law.""

(Emphasis supplied by us)

22. Thus, having considered the matter in its entirety and in view of the law laid down by the Hon'ble Supreme Court in Krishnegowda's case (supra) and Ramesh's case (supra), we find that the learned trial court's findings regarding acquittal of accused-Vijay Kumar, opposite party No.1 herein is based on proper appreciation and analysis of evidence available on record which does not in any manner appear to be improbable or perverse.

23. On the basis of forgoing discussion, we are of the considered view that the application for leave to appeal deserves to be rejected and the same is hereby rejected.

24. Since the application for leave to appeal has been rejected, the appeal also does not survive and the same stands dismissed.

Order Date :-27.07.2021

cks/-