State Of U.P. vs Jagmohan S/O Shyam Lal
2023 Latest Caselaw 22694 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:169437-DB
 
Court No. - 46
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 245 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Jagmohan S/O Shyam Lal
 
Counsel for Appellant :- Shiv Kumar Pal
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

(Ref: Criminal Misc. Delay Condonation Application)

1. Heard.

2. Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned.

3. Application stands allowed.

(Ref: Appeal)

1. This appeal is filed by the State alongwith an application for grant of leave to challenge the judgment and order of acquittal dated 30.11.2022, passed by the court below in Case No.80 of 2015 (State of U.P. Vs. Jagmohan), arising out of Case Crime No.46 of 2013, under Sections 376(2)F, 307, 352 IPC & Section 4 of the POCSO Act, 2012, Police Station Paschim Shareera, District Kaushambi.

2. The FIR in the present case has been lodged on the basis of a direction issued by the Magistrate under Section 156(3) Cr.P.C., as per which, the brother-in-law of the victim's elder sister used to visit the house and on the false pretext of marriage about a year ago established physical relations on account of which, the victim became pregnant. The mausa of the victim, who is accused of the case, on the pretext of providing medical aid took the victim to Allahabad and kept her with him for three months and sexually assaulted her. On a particular date, the victim was taken to a temple and with an intent to conceal the offence, pushed her into the Ganga river and left. The victim was saved by P.W.-6 and somehow she could return. The investigation ultimately resulted in filing of a charge-sheet against the accused under Sections 376(2)F, 307, 352, 506 IPC r/w Section 4 of the POCSO Act.

3. During trial, father of the victim has appeared as P.W.-1 while her mother has appeared as P.W.-2 and the victim herself has appeared as P.W.-4. The doctor, who has examined the victim medically, has appeared as P.W.-5. Other witnesses are formal in nature except P.W.-6, who claimed that he had rescued the victim while she was drowning in the Ganga river.

4. Accused, in his statement recorded under Section 313 Cr.P.C., has sated that he has been falsely implicated in this case only because he had given Rs.50,000/- to P.W.-1 for the treatment of his son with an apprehension that this amount may have to be returned and to avoid such liability, the FIR has been lodged.

5. During trial, P.W.-1 has alleged that the accused is co-brother (sadhu) and her daughter i.e. victim of the case has lodged the FIR. His daughter went missing but no FIR or missing report has been placed on record. P.W.-3, Dr. Anoop Kumar Rastogi is the radiologist and as per his report at the time of her medical examination, the victim was seventeen years of age. Variation of two years has been allowed by the trial court and consequently the victim has been treated to be a major.

6. P.W.-4 is the victim and has supported the prosecution case, as per which, her mausa on the pretext of her medical treatment took her to Allahabad and kept her there for two months and during this period, the victim was sexually assaulted on several occasions. She has also supported the plea as per which she was pushed into the Ganges by the accused in order to conceal the offences.

7. So far as the testimony of victim is concerned, the trial court has found material contradictions in her version made during her statements recorded under Sections 161 vis-a-vis 164 Cr.P.C. and her statement made in court. The victim has not been able to disclose as to on what date the accused took her to the temple where she was pushed into the Ganga river. Although she claimed injuries to have been caused to her but she has admitted that she did not visit any doctor. No injury on the victim is otherwise found. As against her initial statement of staying at Allahabad for three months, the victim during her examination stated that she had been kept at Allahabad for two months. The date and time of the incident in which, she was allegedly pushed into the Ganga river has also not been substantiated. P.W.-6, who is the alleged witness of the incident of drowning of P.W.-4 i.e. victim, has come out with a contradictory version during his cross-examination. As per him, he heard the victim informing someone else that she was pushed by the accused into the Ganga river. The medical report of the victim has not shown any injuries on her. The victim has also admitted that she was pregnant by someone else and has a son of about one and a half years, from her previous relationship, in respect of which no complaint has been made.

8. Considering the fact that the accused is the mausa of the victim and various contradictions have been found in the testimony of P.W.-4 i.e. victim, as such, the trial court has granted the benefit of doubt to the accused in the matter. For coming to such a conclusion, the defence of accused recorded under Section 313 Cr.P.C. has been taken note of, as per which, he had given Rs.50,000/- to P.W.-1 for the treatment of his son and on an apprehension that this amount may have been returned and to avoid repayment of such amount, a false FIR has been lodged in the matter.

9. We have been taken through the judgement of the court below by learned A.G.A. and have also perused the lower court record in order to demonstrate the illegality and perversity in the judgment and order of acquittal dated 30.11.2022, but no such perversity could be shown by the learned State counsel. The fact that victim was a major and the allegation of sexual assault was not supported by medical evidence is not in issue. The conclusions drawn by the court below are clearly borne out from the materials on record.

10. 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 :- 22.8.2023

Zafar