Allahabad High Court
State Of U.P. vs Abdul Mutalib S/O Jaddan on 2 February, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL No. - 55 of 2023
Appellant :- State of U.P.
Respondent :- Abdul Mutalib S/O Jaddan
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
We have heard Km. Meena, learned A.G.A. for the State and perused the material available on record.
This appeal is by the State along with the prayer to grant leave to institute the appeal challenging the acquittal of the respondent-accused in Sessions Trial No. 693 of 2021 (State vs. Abdul Mutalib) arising out of Case Crime No. 141 of 2020, under Section 376 I.P.C., Police Station-Didoli, District-Amroha.
As per the prosecution case, the victim has complained that she was in love with the accused-respondent for about 4 years and on the false pretext of marriage the accused-respondent has physically exploited her on numerous occasions. The victim was made to abort her pregnancy by giving her medicines. The victim on account of false pretext remained under a believe that the accused-respondent would marry her and about three months' back when she asked the accused-respondent to perform marriage, the accused promised that he would marry her within three months. The accused-respondent however has now got engaged with some one else. A panchayat was also held in which the accused-respondent refused to marry the victim. On the basis of the report of the victim, ultimately a charge-sheet was submitted against the accused-respondent under Sections 376 and 313 I.P.C. On submission of the charge-sheet, the cognizance was taken and the case was committed to the Court of sessions where the trial commenced. The prosecution has adduced following oral evidence:
"P.W-1 is the first informant/victim, Taumir Ahmad-P.W.-2, Yakub-P.W.-3, Babu-P.W.-4, Lady Constable Manu Panchal-P.W.-5, S.I. Pappu Jadaun-P.W.-6, Dr. Khushnaaz-P.W.-7 and Jarif-P.W.-9"
In their testimony, P.W.-3 and P.W.-4 have turned hostile. The testimony of P.W.-1/first informant/victim has been noticed by the court below wherein she clearly admitted that she knew the accused-respondent for the last about 6 years. She has alleged that about six years back, while the victim was going to her aunt, the accused-respondent grabbed her and took her in an isolated room, where she was subjected to rape. The accused-respondent nevertheless assured that he would marry the victim and their relations therefore, continued for several years. It has also come in the testimony of P.W.-1 that on account of their relationship, the victim became pregnant but with the help of the family members of the accused-respondent, her pregnancy was aborted.
However, neither the first date of occurrence is mentioned nor the detail is given as to when the victim became pregnant and when was she made to abort.
The victim has also been medically examined by P.W.-7 Dr. Khushnaaz and she has opined that no definite opinion about the rape could be given. In the pathological report, however, dead sperms have been found on the sample sent of the victim. No external or internal injury however was found on the victim, who was not carrying any pregnancy. The age of the victim has been specified as 27 years.
The trial court upon evaluation of evidence on record has come to the conclusion that the consent on the part of the victim in the relationship with the accused-respondent for several years cannot be ruled out. The victim herself has admitted that she continued her relationship with the accused-appellant even after the first incident of alleged rape. The court below has, therefore, opined that the conduct of the victim shows that the relationship between her and the accused-respondent was consensual and the allegation that the consent was obtained on account of any misrepresentation of fact is not borne out from the evidence brought on record.
Although the judgment of the trial court is sought to be assailed by the learned A.G.A. on the ground that consent was obtained on account of misrepresentation and false promise of marriage, yet we find that the allegations by the victim in that regard are not substantiated by the evidence on record. The opinion formed by the court below that the prosecution has failed to establish its case beyond reasonable doubt is a permissible view in the facts of the present case and just because a contrary view could be taken would not ordinarily be a ground for this Court to interfere with the judgment of acquittal. Law is otherwise settled that just because a different view is possible on facts the appellate court would ordinarily not be justified in reversing the judgment and order of acquittal.
In view of the above, we are not inclined to accept the prayer made on behalf of the State for grant of leave to institute an appeal against the impugned judgement and order.
Consequently, the present government appeal fails and is, accordingly, dismissed.
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)
Order Date :- 2.2.2023
Sushil/-
