State Of U.P. vs Dilshad
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155096-DB
 
Court No. - 46
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 338 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Dilshad
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Delay in filing of the appeal has been explained to the satisfaction of the Court.

Application is allowed. Delay in filing of appeal is condoned.

This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 10.1.2023, passed by the trial court, in POCSO Case No.148 of 202015 (State Vs. Dilshad), arising out of Case Crime No.407 of 2014, under Section 354, 323, 504, 506 IPC & Section 7/8 POCSO Act, Police Station Mawana, District Meerut.

As per the victim, who is also the informant, on 15.6.2014 at about 3.30 pm she was going to the market to buy certain goods when the accused met her and obstructed her and threatened that he would not allow the victim to get married. The accused misbehaved with the victim and also held her hand and attempted to strangulate and kill her but as family members and the persons from the locality came on the spot, as such the accused fled away. Threats were extended and that a video clip has been prepared. The victim also alleged herself to be 17 years of the age. On the basis of such report the FIR was registered and after investigation a chargesheet came to be submitted against the accused under Section 354, 323, 504, 506 IPC & Section 7/8 POCSO Act. The concerned court framed charges and as the accused denied his implication, the trial proceeded.

Victim has appeared as PW-1 and has supported the prosecution case. However, in her statement there is a marked improvement over what was disclosed to the police in the written report. As per which the victim, on the threat and by placing a pistol and showing knife, took to Hastinapur, where she sustained injuries. The victim was kept in a room and the accused misbehaved with her. The accused also torned the clothes of the victim and also prepared a video and threatened that unless the victim marries the accused, he would upload the video. The other prosecution witness is the sister of the victim (PW-2), who has also supported the prosecution case. The doctor, who has examined the victim, has found two minor injuries, one of which was on her left chest below the hyoid bone, from which blood was oozing out. Another scratch mark is found on the victim and both the injuries were found to be simple in nature. The doctor in his opinion has stated that both the injuries could have been caused due to nail marks.

So far as the age of the victim is concerned, there are three contradictory evidence produced during trial. As per one of the certificates the date of birth of the victim was 7.5.1995, according to which she was major, whereas as per the Aadhar Card filed the age of the victim is 18.12.1997 and she is a minor. There is yet another evidence in respect of the date of birth, which shows her date of birth to be of 1998. The victim in her statement has made evasive reply with regard to the school in which she has studied and has stated that she only studied for two years in a Junior High School. She has specifically stated that she was major at the time when the incident occurred. The victim has not produced any certificate of date of birth. Smt. Naseema, In-charge Teacher of the Junior High School has been produced as DW-1, who has proved the school records, as per which the date of birth of the victim was 7.5.1995. Relying upon such certificate the trial court has found the date of birth of victim to be 7.5.1995, according to which the victim was major and subsequent materials prepared have been disbelieved in view of the Section 94 of the Juvenile Justice Act, 2015.

So far as the allegation made by the victim with regard to incident is concerned, the trial court has found material improvements in her version made in court vis-a-vis the initial information given to police. The version with regard to accused having taken the victim to Hastinapur and undressing herself, whereafter a video was allegedly prepared, has been disbelieved, as such facts were not disclosed initially at the time of lodging of the police report, though victim was herself the informant. It has also come on record that victim later got married and it was thereafter that the Aadhar Card has been prepared showing her to be a resident of Hapur, where she got married. The victim has also admitted that she was in touch with the accused and often used to talk to him on telephone. The accused allegedly had extended offer of marriage and that is when the families drifted.

From the evidence on record, the trial court has returned a finding that the accused and the victim were known to each other and were also frequently meeting. However, when the proposal for marriage was made by the family of the accused that the relationship between the families turns sour, whereafter the FIR has been lodged. No independent witness has been produced, although the incident occurred in a busy area. After analyzing the evidence on record the trial court has come to the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and has, accordingly, acquitted the accused.

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 :- 3.8.2023

Anil