Allahabad High Court
State Of U.P. vs Mohd. Ali S/O Bundashah And 03 ... on 30 January, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL No. - 51 of 2023
Appellant :- State of U.P.
Respondent :- Mohd. Ali S/O Bundashah And 03 Others
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 20.10.2022, passed by Additional Sessions Judge (Fast Track Court), Bareilly, in Sessions Trial No. 36 of 2010 (State Vs. Mohd. Ali and others), arising out of Case Crime No.442 of 2009, under Section 363, 366, 376 and 506 IPC, Police Station Bithri Chainpur, District Bareilly.
Prosecution case is that informant's daughter, aged about 14 years, has been enticed by the accused persons on the pretext of showing her magic show at Bareilly, whereafter the victim has not returned. It is alleged that on 13.06.2009 a telephone call was received from the accused stating that the victim is with him and that no legal action be taken in the matter or else the victim would be done to death. The informant, therefore, believed that his daughter has been kidnapped. The victim was subsequently recovered and she was medically examined in which no injuries have been found on her person. The age of the victim has been found to be 19 years as per the medical opinion. The statement of victim was also recorded under section 164 Cr.P.C., which did not entirely support the prosecution case. The investigation nevertheless concluded with submission of a chargesheet and trial commenced.
At the stage of trial the doctor, who had medically examined the victim, has been produced as PW-3, as per whom there were no signs of injuries on the private parts of the victim. No spermatozoa or semen was found otherwise. The age of the victim has been determined as 19 years. The victim has also appeared as PW-2 and it is alleged that on the strength of force she was taken on a motorcycle to bus stand, fromwhere the accused took her to Punjab and she was subjected to offence of rape. The victim thereafter taken to Shahjahanpur and then to Bareilly. Statement of other witnesses have also been recorded in the matter.
The trial court on the basis of evidence led in the matter has come to the conclusion that the possibility of victim being a consenting party cannot be ruled out, particularly as she travelled to different places by public transport without raising any protest of any kind. The victim otherwise stayed with accused for fairly long before she returned. The plea that victim was forcibly taken on a motorcycle has also been doubted by the court below, as contradictions have surfaced in her testimony. At one stage of her statement, the victim has stated that she was taken by the three accused persons with the consent of her father. Material contradictions in the statement of victim have otherwise been noticed by the trial court. In such circumstances, the court below has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt.
Though it is urged by the learned AGA that the judgment of court below omits consideration of relevant evidence led by the prosecution in the matter, but we are not impressed by such argument. The facts, as have been recorded in the order of the court below with regard to the victim being a major; the fact that she travelled to different places by public transport for fairly long without raising any protest; the fact that there were contradictions in the statement of the victim are not shown to be factually incorrect. In such circumstances, the view taken by the court below that prosecution has not succeeded in establishing the guilt of accused beyond reasonable doubt is clearly a permissible view 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 :- 30.1.2023
Anil
