Allahabad High Court
State Of U.P. vs Ansar And Others on 22 August, 2023
Bench: Ashwani Kumar Mishra, Syed Aftab Rizvi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:168282-DB
Court No. - 46
Case :- GOVERNMENT APPEAL No. - 379 of 2023
Appellant :- State of U.P.
Respondent :- Ansar And Others
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
Ref:- Order on Delay Condonation Application
The delay in filing of the appeal has been explained to the satisfaction of the Court and is otherwise not seriously opposed.
The delay condonation application is allowed.
Ref:- Appeal
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 25.05.2023, passed by the court below in Special Case no.17 of 2016 (State Vs. Ansar & others), arising out of Case Crime No. 39 of 2016, under Sections 363, 366, 376D IPC and Section 3/4 POCSO Act, Police Station Bakewar, District Etawah.
As per the prosecution, a written report was received from the informant on 03.02.2016 stating therein that the daughter (victim) has gone to ease herself at about 7'O clock in the morning on 28.01.2016 and when she did not return, the informant made effort to search her. Someone informed the informant that the victim has been taken by Neelu on a motorcycle who happened to be the brother of the friend of victim. Call was also received from specified number. Apprehension was, therefore, expressed that the accused- Neelu enticed the minor victim and has left her somewhere. On such allegations, F.I.R. came to be registered under Sections 363 and 366 in Case Crime No.39 of 2016. The investigation proceeded and the victim was traced out on 04.02.2016 and her statement was recorded under Sections 161 and 164 Cr.P.C. The custody was given to her father. Ultimately, on the basis of evidence collected during investigation, a charge-sheet came to be submitted against three accused under Sections 363, 366 and 376D I.P.C. read with Section 3/4 POCSO Act.
During trial, the prosecution has produced documentary and oral evidence. The informant has appeared as P.W.-1 while the victim has appeared as P.W.-2. P.W.-4 is Dr. Suruchi Prakash who has examined the victim. P.W.-6 is the principal who has produced school record as per which the victim was found minor.
During trial, victim has supported the prosecution case, as per which, she had gone to ease herself in the field on 28.01.2016 where she met Ansar and Kailash @ Kallu who were engaged in laying of electricity lines who offered to take her and then gave her some intoxicant and subjected her to rape. In the cross-examination, the victim has, however, come out with a different version of the incident. In the cross-examination, the victim has stated that after easing herself she came back home and met family members. One of the labourers engaged in the erection of electricity tower came to her and gave her a hanky and asked her to come with him to the Mela (fete). The Court concerned has noticed that in her statement before Magistrate the victim has not taken the name of Ansar but has described him as a labour. The implication of the accused- Neelu has not been supported by the victim in the cross-examination.
A further story was developed during cross-examination that accused- Neelu had called the victim on phone to the field and from there Ansar took her on a truck. The testimony of victim has been carefully examined by the Court below and contradictory versions of her, have been recorded. It was, otherwise, found in the medical examination of the victim that there were no external or internal injuries on her. The manner in which, selectively, prosecution kept changing the description of accused is one of the circumstance which has been relied upon by the Court below to acquit the accused by granting them benefit of doubt.
We have been taken through the judgment of acquittal passed by the Court below, learned AGA and in order to contend that the facts have not been appreciated in right perspective, however, we find that the adverse inference drawn on the prosecution case on account of contradictory stand taken by the victim at different stages of proceedings is clearly shown from the records. In view of the admitted case that no external or internal injury was found on the victim, the view taken by the Court below to grant benefit of doubt to the accused is clearly permissible view 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
SP/-
