Allahabad High Court
State Of U.P. vs Faisal S/O Hazi Bhura Alias Zakir on 19 December, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:239940-DB
Court No. - 46
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 512 of 2023
Appellant :- State of U.P.
Respondent :- Faisal S/O Hazi Bhura Alias Zakir
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 27.2.2019, passed by Ist Additional Sessions Judge Amroha, in Special Sessions Trial No.294 of 2013 (State Vs. Faisal), arising out of Case Crime No.132 of 2013, under Section 366-A, 376(2) IPC & Section 6 POCSO Act, Police Station Didauli, District Amroha, with a delay of more than 4 years. There is absolutely no explanation for condoning such inordinate delay. Nevertheless, we have examined the facts of the case in order to decipher as to whether any illegality has been committed in acquitting the accused.
As per the prosecution case, the informant alongwith his wife had gone to his elder daughter's house on 29.5.2013. On the same night at about 8.30 pm the accused alongwith his two friends entered his house and by extending threats, took his 15 year old daughter, who was then subjected to sexual assault and left at Pakbada bus stand on 31.5.2013. Case Crime No.132 of 2013 was registered under Section 366-A, 376 IPC read with Section 3/4 POCSO Act. Investigation concluded with submission of chargesheet on which cognizance was taken and the trial commenced.
First and foremost, it would be relevant to discuss the evidence on the aspect of minority of the victim, as is alleged by the informant. The trial court has taken note of the medical examination report, as per which the victim was found to be 18 years of age. Though school records of Class-2 were produced but the trial court has disbelieved such records after noticing the fact that victim has been putting her thumb impression at different stages and has also stated that she never studied in any school. Relying upon medical opinion, the trial court has found the victim to be major. We have been taken through the evidence on record, but no perversity or illegality in such finding has been shown to the Court. We, therefore, concur with the finding of trial court that the victim was major.
Victim has been produced during trial. She has supported her statement made under Section 164 Cr.P.C., wherein she had supported the prosecution case of sexual assault. During the course of her examination the victim, however, has stated that the accused came to her house in the night and knocked her door. It is also alleged that she was threatened but the trial court has disbelieved such version after noticing the fact that victim travelled on a motorbike and had gone to Moradabad without raising any protest. Victim also stayed with accused in the densely populated area for two days but no objection or protest was raised. The victim has also admitted that she was taken to a market and they had meals. Though the victim was taken by accused on his motorbike in public view but at no stage she raised any protest against the accused. The evidence on record has been carefully scrutinized by the trial court and an inference has been drawn that possibility of relationship being consensual cannot be ruled out. It is with this finding that the trial court has observed that the accused is entitled to benefit of doubt and that the prosecution has failed to establish its case 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. Delay condonation application as well as prayer made by the State for grant of leave to institute the appeal, both, are, accordingly, rejected.
Order Date :- 19.12.2023
Anil
