Allahabad High Court
State Of U.P. vs Sumit Kumar And Anr. on 24 February, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 47 of 2019
Appellant :- State of U.P.
Respondent :- Sumit Kumar And Anr.
Counsel for Appellant :- G.A.
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
Ref: Delay Condonation Application
Delay in filing the present appeal has been explained to the satisfaction of the Court. Delay is accordingly condoned.
Application stands allowed.
Ref: Appeal
This appeal is by the State alongwith an application for grant of leave to challenge the judgment and order of acquittal passed by the Court below in Special Sessions Trial No. 60 of 2015 whereby the accused-respondents have been acquitted by giving benefit of doubt in respect of offences alleged under Sections 376-D, 354, 506 I.P.C. and section 4/8 POCSO Act, arising out of Case Crime No. 238 of 2015, P.S. Thathiya, District Kannauj
The first information report in the present case has been lodged on the direction of Superintendent of Police, Kannauj on the allegation that while victim had gone to ease herself on 22.06.2015 she was forcibly dragged by the accused towards the agricultural field and on the threat of Tamancha she was sexually assaulted. On raising of an alarm, the villagers arrived whereafter the accused fled from the spot.
The investigation ultimately concluded with submission of charge-sheet against the accused under Sections 376-D, 354, 506 I.P.C. and section 4/8 POCSO Act. Charges were also framed by the concerned court against the accused and since they denied the allegations levelled, the trial commenced.
During the course of trial Dr. Nidhi Goyal has been produced as PW-1, who had medically examined the victim. The victim was found to be major and in the medical examination no internal or external injury was found on the victim. The trial court has therefore observed that the allegation of the victim as also the mother that the victim sustained injuries on her cheek, lips and chest etc. do not find corroboration from the medical evidence.
The victim has been produced as PW-2 and the trial court has found material contradictions in her stand. Though the incident is alleged to have occurred on 22.06.2015 but in her statement before the Court, the victim discloses the date of incident to be 21.05.2015.
The statement of the victim that she was dragged by the accused from a distance of 15-20 paces away from her mother has not been found reliable. The testimony of mother and the victim with regard to sexual assault and causing injuries has not been found worthy of reliance on account of contradictions in their statement with regard to the date of occurrence as also the fact that the medical report does not support the commissioning of offence.
It is on the basis of evaluation of such evidence that the trial court has come to the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt.
So far as the testimony of PW-6 is concerned, though he is alleged to be an eye-witness but he has only stated that on hearing of scream by the victim, he reached at the place of occurrence and the accused left, thereafter. He also claims that in the light of torch he saw the accused respondent committing rape and one of the accused holding the hand of the victim. The statement of the PW-6 has been disbelieved after noticing the fact that he had criminal antecedents and had been produced from jail. This witness is a related witness and in view of the contradiction in the stand of the victim herself and the fact that medical report does not support commissioning of offence, the trial court has disbelieved his statement.
We have been taken through the judgment of the trial court by learned A.G.A., who contends that evidence has been misconstrued and the trial court has erred in acquitting the accused.
Having examined the judgment of the court below and the argument advanced by learned AGA we find that the factual findings returned by the trial court with regard to the contradiction in the oral testimony of the victim as also the fact that medical report does not support commissioning of offence is not shown to be factually incorrect. The reason assigned for discarding the testimony of PW-6 is also a permissible view in the facts of the case, and just because a different view could be taken would not be a ground for this Court to interfere with the order of acquittal.
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 :- 24.2.2023
Sunil Kr Tiwari
