Allahabad High Court
State Of U.P. vs Atul Upadhyay S/O Nanhe Upadhyay ... on 24 November, 2022
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 86 of 2022
Appellant :- State of U.P.
Respondent :- Atul Upadhyay S/O Nanhe Upadhyay And Another
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.
Cause shown in the affidavit filed in support of the delay condonation application for condonation of delay is sufficient.
The delay condonation application is thus allowed and the delay in filing the appeal is condoned.
Order on Appeal
This appeal is by the State alongwith an application for grant of leave to challenge the judgment and order dated 26.11.2021 passed by learned Sessions Judge, Ghazipur in Sessions Trial No. 01 of 2021 (State Vs. Atul Upadhyay and another), arising out of Case Crime No. 02 of 2020, under Sections 147, 376 Gha/149, 323/149, 307/149 I.P.C., Police Station Dildarnagar, District Ghazipur, whereby the accused-respondents have been acquitted of the charges leveled against them.
Prosecution case is that informant's grand daughter was subjected to rape by the accused persons and thereafter she was thrown from the roof on account of which she suffered fracture in her back. The investigation proceeded in which the victim in her statement recorded under Section 164 Cr.P.C. did not support the prosecution case. However, a charge-sheet was submitted against the accused respondents under Sections 147, 376D, 323, 307 I.P.C.
During the course of trial the victim has been produced as P.W.-3, who has not supported the prosecution case and has clearly stated that she was sleeping on the roof which had no railings and suddenly she slipped and fell on account of which she sustained the injuries. She was later referred to Higher Medical Center for treatment at Varanasi and it was there that she came to know that some F.I.R. has been lodged against the accused persons. The victim has thus been declared hostile. Similarly the mother of the victim as also her sister, who appeared as P.W.-4 and P.W.-5 have turned hostile and have not supported the prosecution case. The medical evidence on record also did not support the commissioning of rape.
The trial court upon evaluation of the evidence led by the prosecution has come to the conclusion that the prosecution has failed to establish the guilt of the accused respondents beyond reasonable doubt. The view taken by the court below is clearly a permissible view in the facts of the present case and merely because a different view could have been taken cannot be a ground to interfere with the order of acquittal. Neither any perversity is shown in the judgment nor any triable issue is shown to arise in the facts of the case, which may persuade this Court to accept the prayer of the State to grant leave to institute the appeal.
Prayer made for grant of leave under Section 378(3) Cr.P.C. is declined.
The present government appeal consequently fails and is accordingly, dismissed.
Order Date :- 24.11.2022
Abhishek Singh
