Allahabad High Court
State Of U.P. vs Deepak Madheshiya And Anr. on 3 February, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 33 of 2019
Appellant :- State of U.P.
Respondent :- Deepak Madheshiya And Anr.
Counsel for Appellant :- G.A.
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
In Re:- Criminal Misc. Delay Condonation Application
We have perused the affidavit filed in support of the delay condonation application.
Cause shown in the affidavit filed in support of the delay condonation application for condonation of delay is sufficient.
The delay condonation application is thus allowed and the delay in filing the appeal is condoned.
Order on Appeal
This appeal is by the State alongwith an application for grant of leave to challenge the judgment and order dated 10.07.2018 passed by learned Additional Sessions Judge/ Special Judge, POCSO Act, Court No.9, Gorakhpur in Special Session Trial No.172 of 2014 (State Vs. Deepak Madheshiya) as well as Special Sessions Trial No. 19 of 2015 (State Vs. Suraj Jaiswal), under Sections 363, 366, 376D, 342, 506 I.P.C. and Section 3/4 POCSO Act, Police Station Pipraich, District Gorakhpur, whereby the accused-respondents have been acquitted of the charges leveled against them by granting benefit of doubt.
As per the prosecution case informant's daughter aged about 14 years had gone towards brick kiln at about 1:00 P.M. on 7.7.2014 but did not return and despite all endevours she could not be traced and it was thus apprehended that someone has enticed her. An F.I.R. was thus registered as Case Crime No. 364 of 2014, under Sections 363, 366 I.P.C. The victim was subsequently recovered and her statement was recorded under Section 161 and 164 Cr.P.C. Ultimately a charge-sheet was submitted against the accused respondents under Sections 363, 366, 376D, 342, 506 I.P.C. and Section 3/4 POCSO Act. The charges were framed by the court of Sessions and the trial commenced.
Victim has been produced in the matter as P.W.-1 and she has been medically examined. The prosecution has alleged the victim to be a minor and for such purposes the school certificate has been produced in the matter. The trial court, however, has found that the school certificate is in respect of admission to Class 6 on 1.7.2011 and she has passed Class 8 in the year 2013-14. The records in that regard have been examined and the court below has observed that records relating to entry of date of birth in the school for the first time in Class 1 is not proved.
Contradiction in the statement of witnesses with regard to the institution where the victim studied has also surfaced. The transfer certificate has otherwise not been proved by virtue of Section 35 of the Indian Evidence Act. Trial court for such reasons has discarded the school certificate for determining the age of the victim. The radiological age of the victim determined by the office of Chief Medical Officer has been relied upon as per which the age of the victim was 17 years. By allowing variation of two years in the medical age the trial court has treated the victim to be major.
Statement of the victim has been examined by the court below and it was found that the victim was not enticed by the accused but she had left with Satya Prakash, who is from the family of the accused Deepak. It has also come in evidence that the family members had refused the marriage of victim with Satya Prakash whereafter the father of the victim has lodged the first information report. The trial court has also found material contradiction in the statements of the victim vis-a-vis her previous statement made under Sections 161 and 164 Cr.P.C. The victim otherwise admitted that she had not met or recognized accused Suraj and it was for the first time that she saw him in the Court.
Upon evaluation of such evidence the court below has come to the conclusion that prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
Although learned A.G.A. has tried to submit that the view taken by the court below is perverse but no such perversity is shown in the judgment. The view taken by the court below is clearly a permissible view in the facts of the present case and merely because a different view could be taken cannot be a ground to interfere with the order of acquittal. No triable issue is otherwise shown to arise in the facts of the case, which may persuade this Court to accept the prayer of the State to grant leave to institute the appeal.
Prayer made for grant of leave under Section 378(3) Cr.P.C. is declined.
The present government appeal consequently fails and is accordingly, dismissed.
Order Date :- 3.2.2023
Abhishek Singh
