Allahabad High Court
State Of U.P. vs Sharafat And 2 Others on 10 February, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 170 of 2018
Appellant :- State of U.P.
Respondent :- Sharafat And 2 Others
Counsel for Appellant :- G.A.
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
Delay in filing of the appeal has been explained to the satisfaction of the Court.
Delay Condonation Application is allowed. Delay in filing of appeal is condoned.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 18.12.2014, passed by Additional Sessions Judge, Court No.5, Kanpur Nagar, in Sessions Trial No.1061 of 2010 (State Vs. Sharafat and others), arising out of Case Crime No.268 of 2010, under Section 376, 363, 376(2)(g), 323 and 506 IPC, Police Station Chamanganj, District Kanpur Nagar, whereby three accused have been acquitted and the fourth namely Irshad @ Saddan has been convicted under Section 363 IPC and sentenced to 03 years rigorous imprisonment with Rs.3,000/- fine and 07 years rigorous imprisonment under Section 376 IPC alongwith Rs.5,000/- fine and in default of its payment the accused has to further undergo 03 months additional incarceration. All punishments are to run simultaneously.
At the very outset, it may be noticed that the accused Irshad @ Saddan had filed the Criminal Appeal No. 204 of 2015 before this Court, wherein his conviction and sentence was assailed. This appeal has been allowed on 15.03.2019 by learned Single Judge of this Court and the conviction and sentence of accused has been set aside.
Briefly stated, the prosecution case is that the informant's daughter aged 13 years used to visit the accused for making kites at their place. The accused allegedly had bad intentions and when she visited the accused for taking kites on 14.3.2010, the accused Shadab bolted the door from outside after sending the victim in the Karkhana and subjected her to rape. The victim informed her mother about the incident and although a complaint was made but no action was taken. The accused came again to the house of the informant on 16.03.2010 at about 9.30 and asked her to come and collect the amount payable to her. The accused then forcibly took the victim in a car and again subjected her to offence under Section 376 IPC. The victim was extended threats and was clearly told that if any protest is made their family members would be done to death. The informant received a call from the victim that she may come and take her as the accused were subjecting her to rape after getting her intoxicated. The victim was kept at different places and at different locations she was subjected to rape. On the basis of such allegations a First Information Report was lodged on 15.05.2010 at 3.30 PM. The investigation concluded with submission of charge-sheet against the accused. The court below took cognizance of the matter and charged the accused of committing offence under Section 376, 363, 376(2)(g), 323 and 506 IPC.
The trial proceeded in which the victim was produced as PW-1. The victim has turned hostile. She has not supported the prosecution case of commissioning of offence of rape upon her. The medical examination report of the victim has also been proved by PW-3, who has stated that the victim had no injuries on her private parts and her hymen was old, torn and healed. Slides were prepared and sent for pathological examination in which no spermatozoa was found. An opinion has been expressed by the doctor that if victim is subjected to rape for 6 or 7 times during the last couple of days, it would be expected that dead or live spermatozoa would be present atleast up to a period of 72 hours. The doctor, however, has not been cross-examined. Age of the victim has also been determined as 16 years.
Trial court, on the basis of evidence led in the matter, has concluded that the alleged offence of rape upon the victim is not substantiated by the medico-legal report and the victim otherwise has turned hostile. In such circumstances the three of the four accused have been granted benefit of doubt and have been acquitted. The fourth accused, who was convicted and sentenced, has already been acquitted pursuant to judgment passed by this Court on 15.03.2019 in Criminal Appeal No. 204 of 2015.
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. The fact that victim has not supported the prosecution case and there is no independent corroboration of prosecution case in the form of medico-legal report remains undisputed.
In such circumstances and for the reasons recorded above 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 :- 10.2.2023
Anil
