Allahabad High Court
State Of U.P. vs Pawan Kumar S/O Mohabbat Singh on 2 January, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL No. - 790 of 2022
Appellant :- State of U.P.
Respondent :- Pawan Kumar S/O Mohabbat Singh
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 19.9.2022, passed by Additional Sessions Judge/Trying Rape Cases (POCSO Act), Etawah, in Special Case No.65 of 2015 (State Vs. Pawan Kumar and another), arising out of Case Crime No.54 of 2015, under Section 376 IPC & Section 4 POCSO Act, Police Station Bharthana, District Etawah.
Prosecution case, in brief, is that on 23.9.2014 the victim, aged 16 years, had gone to the fields to ease herself where the accused came from behind; gagged her mouth and committed rape upon her. The victim was not allowed to return home and when the father of the victim was going to lodge a report next morning he saw that Lakhan Singh was bringing back his daughter. The victim apparently informed these facts to his mother (PW-3) and when a complaint was made to the father of the accused he apparently became annoyed and fought with the family members of the victim. It is alleged that on 25.9.20214 the informant went to lodge the FIR but the FIR was not registered, and therefore an application was moved under Section 156(3) Cr.P.C. on 26.9.2014 and on the basis of direction issued by the Magistrate on 5.1.2015 the FIR was ultimately registered. The investigation proceeded in which the statement of victim was recorded under Sections 161 and 164 Cr.P.C. and ultimately a chargesheet has been submitted against the accused under Section 376 IPC & Section 4 POCSO Act.
The trial proceeded in which the victim as also her parents have been examined. The accused has also been confronted with the material collected against him under Section 313 Cr.P.C. The accused has stated that the victim is in the habit of lodging such frivolous report and later on after extracting money from the accused she withdraws such complaints.
The trial court has analyzed the evidence led on record by the prosecution. On the aspect of age the trial court has noticed that there is no document to show the age of the victim in terms of Section 94 of the Juvenile Justice Act, 2015 and the only material on record is the report of Chief Medical Officer, as per which the victim is above 18 years of age on the date of incident. On the basis of such material the court below has come to a conclusion that the victim is not a minor but is above 18 years of age. Finding in this regard has not been shown to be perverse or erroneous.
So far as the actual commissioning of offence is concerned, the trial court has specifically formulated issue no.3 in that regard and has examined the evidence led by the prosecution. The statement of victim under Section 164 Cr.P.C. has also been noticed in which the victim stated that after the incident the accused took her with him for almost a month and that she conceived and later aborted. The evidence has also come on record that on a previous occasion also a similar complaint was made by the same victim, which was later withdrawn on the basis of a compromise. The medical examination, belatedly conducted in the matter, showed no injuries and the allegation made by the victim has not found corroboration from the medical evidence brought on record. The court below has found material contradiction in the statement of the witnesses, inasmuch as the statement that the victim was taken by the accused the entire night and later she was brought back by Lakhan Singh as also the statement of victim under Section 164 Cr.P.C., to opine that the prosecution has not been able to prove the occurrence of incident in the manner, as is alleged by the informant, beyond reasonable doubt. It has also been brought on record that the informant had taken on lease the agricultural land of the brother-in-law of the accused and that there was some financial dispute between them with regard to apportionment of yields from the crop to provide motive for false implication. Upon the accumulative assessment of such evidence the trial court has come to a conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The trial court has also taken note of the fact that FIR was not lodged promptly and the delay in that regard has not been explained.
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 not be a ground for this Court to interfere with the order of acquittal. The findings returned by the court below that the victim is a major is also based upon material on record. The fact that there are contradictions in the statement of witnesses and the statement of victim under Section 164 Cr.P.C. completely negates the case of the prosecution are clearly matters, which would justify taking of the view by the trial court that prosecution has failed to establish its case beyond reasonable doubt.
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 :- 2.1.2023
Anil
