Allahabad High Court
State Of U.P. vs Islam Navi on 10 February, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 182 of 2018
Appellant :- State of U.P.
Respondent :- Islam Navi
Counsel for Appellant :- G.A.
Counsel for Respondent :- Anil Kumar
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
Delay of 109 days in filing of the appeal under Section 378(3) Cr.P.C. against the acquittal of accused has been explained to the satisfaction of the Court.
Since the present application is not otherwise seriously opposed by the learned counsel for the respondents, the delay in filing of the appeal under Section 378(3) Cr.P.C. is condoned.
Heard learned A.G.A. for the State and Sri Anil Kumar, counsel for the accused-respondents.
This appeal is by the State along with an application for grant of leave to challenge the judgment of acquittal dated 06.12.2017 passed by the court below in Sessions Trial No. 23 of 2015 (State of U.P. Vs. Islam Navi) whereby the accused respondent has been acquitted of the charges levelled against him under Section 363, 366, 376 in case crime no. 146 of 2015.
Written report was made to the Police Station Sahawar District Kasganj, stating that on 06.03.2015 when the informant was not at home, the accused along with Sitara Begum wife of Hasan Ali enticed the sixteen year old minor daughter. Jaleel s/o Navisher saw the incident. The investigation proceeded and ultimately concluded with submission of charge-sheet against the accused under Section 363, 366, 376 I.P.C. and Section of POCSO Act. Charges were framed by the court on 30.06.2015 under the aforesaid Section.
At the outset, it may be notices that though the alleged offence was committed on 6th of March, 2015 but the F.I.R. has been lodged after twenty four days. On 30.03.20215, the victim has been medically examined on 05.05.2015 wherein no internal or external injuries are found on her. In the radio-logical report, the age of victim has been determined as sixteen years and variation of two year is permissble in the opinion of doctor. It may also be noticed that the victim has not supported the prosecution case in her statement under Section 161 and 164 Cr.P.C..
During trial, the victim has supported the prosecution case at the stage of recording of statement at the examination-in-chief but has not supported the prosecution case at the stage of cross-examination.
It has also come in evidence that during trial the victim has solemnized marriage with the accused and that they are living together. Statement of mother has also been examined which does not fully support the prosecution case.
Upon evaluation of the evidence so led in the matter the court below has concluded that since victim is a major and has not supported the prosecution case, coupled with the fact that medico-legal report does not support the incident of rape, the accused has been acquitted of the charges levelled against him.
Although learned A.G.A. has taken us through the judgment in order to submit that the court below has misconstrues the evidence and has erroneously acquitted the accused but we do not find any substance in such argument.View taken of the court below to acquit the accused, in the facts of the present case, is actually permissible view.
In such circumstances, prayer made for grant of leave to institute the appeal is refused. Consequently the appeal fails and is dismiss.
Order Date :- 10.2.2023
A. Farooqui
