Allahabad High Court
State Of U.P. vs [email protected] S/O Munna Lal on 9 January, 2023
Bench: Ashwani Kumar Mishra, Shiv Shanker Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL No. - 7 of 2023
Appellant :- State of U.P.
Respondent :- [email protected] S/O Munna Lal
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
This appeal is by the State alongwith an application for grant of leave to challenge the judgment and order dated 22.9.2022 passed by learned Special Judge (POCSO Act), Court No.3/ Additional Sessions Judge, Moradabad in Sessions Trial No. 462 of 2015 (State of U.P. vs. Rohit @ Chhotey), arising out of Case Crime No. 75 of 2015, under Sections 363, 377, 302, 201 I.P.C. and Section 3/4 POCSO Act, 2012, Police Station Bilari, District Moradabad, whereby the accused-respondent has been acquitted of the charges leveled against him.
Record reveal that a five years old victim was subjected to unnatural offence under Section 377 I.P.C. and subsequently he has been done to death. Report in that regard has been given by the informant on 5.3.2015 at 16:30 hours. The F.I.R. has been lodged against unknown person.
During the course of investigation the name of the accused surfaced on the basis of statement of P.W.-2 and P.W.-3, who stated that they have seen the victim in the company of the accused, whereafter the victim was not seen. The investigation ultimately concluded with submission of charge-sheet against the accused-respondent.
During the course of trial P.W.-1 has supported the prosecution case but admittedly he is not an eye-witness nor has he seen the accused in the company of the victim. P.W.-2 and P.W.-3, in whose testimony the implication of the accused surfaced, have supported the prosecution case in examination-in-chief, but at the stage of cross-examination these witnesses have not been able to specifically substantiate their previous assertions with regard to victim being in the company of the accused.
The Trial Court found that though the offence has occurred as is substantiated from the medical report but there is no cogent evidence to connect the accused with the commissioning of offence. Except for the statement of P.W.-2 and P.W.-3 there is no other evidence or material against the accused. Even statement of P.W. -2 and P.W.-3 does not entirely support the implication of the accused.
Based upon the material and evidence brought by the prosecution at the stage of trial, the Court below has opined that the chain of events required to be connected in a case of circumstantial evidence has not been proved by the prosecution and there is no hypothesis of guilt attributed to the accused in the facts of the case. Existence of alternative hypothesis has not been ruled out. In such circumstances the accused has been acquitted.
Although learned A.G.A. has tried to submit that the view taken by the court below is perverse but no such perversity is shown in the judgment. The view taken by the court below is clearly a permissible view in the facts of the present case and merely because a different view could be taken cannot be a ground to interfere with the order of acquittal. No triable issue is otherwise shown to arise in the facts of the case, which may persuade this Court to accept the prayer of the State to grant leave to institute the appeal.
Prayer made for grant of leave under Section 378(3) Cr.P.C. is declined.
The present government appeal consequently fails and is accordingly, dismissed.
Order Date :- 9.1.2023
Abhishek Singh
