Allahabad High Court
State Of U.P. vs Arun Kumar Kushwaha S/O Madan Lal ... on 22 November, 2022
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 72 of 2022
Appellant :- State of U.P.
Respondent :- Arun Kumar Kushwaha S/O Madan Lal Kushwaha
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
In Re:- Criminal Misc. Delay Condonation Application
We have perused the affidavit filed in support of the delay condonation application. The delay in filing the appeal is 109 days.
Cause shown for delay in filing the appeal has been duly explained to the satisfaction of the court.
The delay condonation application is, accordingly, allowed and the delay in filing the appeal is condoned.
Order on Appeal
This appeal along with an application for grant of leave is instituted by the State challenging the judgment and order dated 04.03.2022 passed by learned Special Judge, POCSO Act/ Additional Sessions Judge, Court No.13, Kanpur Nagar in S.S.T. No. 99 of 2015 (State vs. Arun Kumar Kushwaha), arising out of Case Crime No. 68 of 2015, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Kalyanpur, District Kanpur Nagar, whereby the court below has found the accused-appellant not guilty of the offence and he was acquitted.
Prosecution case is that a report was lodged by the informant on 29.01.2015 stating that his daughter (hereinafter referred to as 'victim') aged about 15 years had gone to Jawahar Lal Nehru Inter College, Panki Road, Kalyanpur but did not return even after the school hours. An F.I.R. accordingly was lodged under Section 363 I.P.C.
The victim was recovered and her statement has been recorded under Section 161 and 164 Cr.P.C. whereafter offence under Section 376 I.P.C. was added along with offence under the POCSO Act. The victim had implicated the accused.
The victim has been medically examined and her age has been found to be 17 years. However, no injury has been found on the victim which may indicate commissining of offence of rape upon her. In the internal examination victim's hymen was found old torned and healed and neither any spermatozoa nor any sperms etc. have been found.
The trial proceeded in which the victim was produced as P.W.-2. She has stated that she left on her own accord to Lucknow, without disclosing her family members, looking for a job as there was often dispute between her parents due to lack of funds with them. She claims to have stayed at the house of the accused since she had known him from before. She has further claimed that she stayed at Lucknow for 3-4 months and also did a job and later informed everything to her parents. However, in her absence the report was lodged and on pressure being exerted she made false statement under Section 161 and 164 Cr.P.C. against the accused.
Upon evaluation of oral and documentary evidence placed on record the court below found that the prosecution has not been able to establish the guilt of accused-respondent beyond all reasonable doubt and, therefore, the accused-respondent has been acquitted by granting him benefit of doubt.
Learned State Counsel submits that the victim is a minor and in her statement recorded under Section 161 and 164 Cr.P.C., she had supported the prosecution case.
Be that as it may, records reveal that at the stage of trial the victim has not supported the prosecution case and the medico legal examination also does not support occurrence of rape. The father of the victim has also not identified the accused. In such circumstances, conclusion drawn by the trial court on the basis of evaluation of evidence that prosecution has failed to prove the guilt of accused beyond reasonable doubt is a permissible view in the eyes of law. Neither any perversity is shown in the judgment and order nor any triable issue is shown to arise in the facts of the present appeal, which may justify grant of leave by this Court. In such circumstances prayer made by the State for grant of leave to instituted the appeal is hereby refused.
Consequently the present government appeal fails and is dismissed.
Order Date :- 22.11.2022
Abhishek Singh
