Allahabad High Court
State Of U.P. vs Eishaq S/O Mustaq And 03 Others on 30 January, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL No. - 49 of 2023
Appellant :- State of U.P.
Respondent :- Eishaq S/O Mustaq 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 18.10.2022, passed by Additional Sessions Judge (Fast Track Court), Bareilly, in Sessions Trial No. 226 of 2011 (State Vs. Eishaq and others), arising out of Case Crime No. 2369 of 2008, under Section 363, 366, 376 IPC, Police Station Izzatnagar, District Bareilly.
As per the prosecution case the marriage of informant's daughter was already fixed elsewhere when on 12.12.2008 at about 10.00 in the night the accused, who were residing in the neighbourhood, enticed the victim. On the basis of written report of the informant in Case Crime No. 2369 of 2008, under Section 366 IPC was initially registered against the accused, and on the basis of evidence collected during the course of investigation a chargesheet was submitted under Section 363, 366 IPC. The Magistrate took cognizance and matter was thereafter committed to the court of Sessions for trial.
So far as the age of victim is concerned, the medical report of Radiologist shows her age to be above 18 years. The witnesses have also not disputed that fact that victim is above 18 years. Consequently, the finding has been returned that victim is above 18 years of age.
During the course of trial the victim although has supported the prosecution case but the court below has not found the statement of victim to be trustworthy, inasmuch as in her statement under section 161 Cr.P.C. she had disclosed her age to be 20 years and has clearly stated that her parents wanted her to be married to someone where it was the groom's second marriage, and therefore she left voluntarily with the accused. The victim in her statement under section 164 Cr.P.C. has also not supported the prosecution case. However, at the stage of recording of her statement before the court she has supported the prosecution case and has implicated four persons by stating that they subjected her to offence under Section 376 IPC. The statement of victim further shows that she was taken by public transport from Ludhiana, Rudrapur and Rajpura etc. The victim has also been medically examined, in which no injuries have been shown to exist on her person.
Trial court on the basis of evidence led in the matter has come to the conclusion that victim is major and has voluntarily left with the accused, as was her case, when her statement was recorded under section 161 and 164 Cr.P.C. The subsequent departure at the stage of recording of her statement in court has not been found trustworthy and no corroboration was otherwise shown. The case of victim at the stage of trial has been found to be improbable, and therefore her testimony has been discarded.
Although the State proposes to challenge the judgment but the findings returned by the court below based upon the evidence on record to the effect that victim has not supported the prosecution case at the time of her statement recorded under section 161 and 164 Cr.P.C. is not shown to be incorrect. The victim otherwise is major and the medical record does not support the commissioning of offence of rape. No independent corroboration of such fact has otherwise surfaced. The view taken by the court below that the prosecution has failed to prove its case beyond reasonable doubt, for such reasons, 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
