Allahabad High Court
State Of U.P. Thru. Prin. Secy. ... vs Shyam Sundar @ Nok Bahadur And ... on 12 July, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:45326
Court No. - 27
Case :- APPLICATION U/S 378 No. - 36 of 2023
Applicant :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Opposite Party :- Shyam Sundar @ Nok Bahadur And Another
Counsel for Applicant :- G.A.
Hon'ble Brij Raj Singh,J.
1. Heard learned counsel for the applicants, learned counsel for opposite parties and perused the record.
2. The present appeal has been filed by the applicants against the judgement and order dated 09.11.2022 passed by Special Judge, POCSO Act/ Additional Sessions Judge, Faizabad in Case Crime No.312 of 2015 under Section 354, 506 I.P.C., 3(1)(xi) SC/ST Act and 7/8 Protection of Children from Sexual Office, Police Station- Mawai, District- Faizabad/Ayodhya.
3. As per prosecution case, the complainant/victim lodged an F.I.R. mentioning therein that she was sleeping along with her younger sister and grand mother in the baramda and at 11:00 PM, in the night of 06.11.2015, accused-respondent, namely, Shyam Sundar @ Nok Bahadur reached in the baramda and molested her. The complainant raised alarm and the people sleeping in the baramda woke up and in the light of torch, she saw that accused-respondent was running away from the place by threatening complainant.
4. The F.I.R. was lodged in Case Crime No.312 of 2015 under Section 354, 506 I.P.C., 3(1)(xi) SC/ST Act and 7/8 Protection of Children from Sexual Offence Act, Police Station- Mawai, District- Faizabad/Ayodhya at 17:00 hours on 07.11.2015. The case was investigated by C.O. and the charge sheet was filed under Sections 356, 506 I.P.C. 354, 506 I.P.C., 3(1)(xi) SC/ST Act and 7/8 Protection of Children from Sexual Offence Act. The cognizance was taken on 01.08.2016 and the charges were framed against the accused respondent on 13.02.2017 under Sections 354, 506 I.P.C., 3(1)(xi) SC/ST Act and 7/8 Protection of Children from Sexual Offence Act.
5. The prosecution produced six witnesses who were examined before the Court below, namely P.W.-1 (Victim), P.W.-2 (sister of the victim), P.W.-3 (mother of the victim), P.W.-4 (Constable Bhupendra Singh), P.W.-5 (C.O. Santosh Kumar) and P.W.-6 (Bhagwan Baksh Pandey).
6. The accused-respondent was confronted under Section 313 Cr.P.C. and deposed before the Court that he was falsely implicated due to enmity. He further deposed that due to election of Gram Pradhan, there is parti-bandi, therefore, he has been falsely implicated.
7. The trial court after adducing the evidence available on record acquitted the accused-respondent, hence, the present application to leave along with appeal has been filed by the State.
8. The statement of P.W.-1 (victim) was recorded and in her cross-examination, she has deposed that accused-respondent was resident of village Saimsi and the distance of village Saimsi from the village of victim is 4-5 km. She further deposed that it was dark night and the atmosphere was also foggy, therefore, nobody came to the place of occurrence. She further deposed that she and other family members did not lodge the F.I.R. in the night and the report was lodged by her on the next day.
9. P.W.-2 (sister of the victim) deposed that accused-respondent molested her sister and when she raised alarm then many persons came to the place of occurrence and the victim switched on the torch. She has also admitted in her cross-examination that the accuse-respondent was identified in the light of torch. She further deposed that she could not see the incident which happened with her sister and the entire fact was narrated by her sister.
10. P.W.-3 (mother of victim) also tried to support the prosecution case, and in her cross-examination, she deposed that she was taking sound sleep on the date of occurrence and she had no idea when the accused-respondent entered in her house and when she woke up, she saw that accused-respondent was running away from her house but no alarm was raised by her. She further deposed that there was no arrangement of electricity in the house.
11. From the perusal of record, it appears that there was no arrangement of light at the place of occurrence. The victim deposed that she identified the accused-respondent in the light of torch whereas P.W.-3 deposed that there was no arrangement of light. It is thus clear that there are many contradictions in the statement of P.W.1, P.W.2 and P.W.3.
12. P.W.-1 (victim) has deposed that the entire fact was narrated to her grand mother and her bhabhi but they have not been produced before the Court and no independent witness has been produced.
13. P.W.-2 (sister of the victim) has deposed that she could not see the incident and the entire fact was narrated by her sister i.e. P.W.-1 (victim) thus, P.W.-2 is not the eye witness of the incident.
14. It is admitted by the victim in her cross-examination that there is 5 km distance between her village and the village of accused-respondent and there is doubt that a person will come for molestation at 11 O' Clock from 5 km away.
15. P.W.-3 (mother of the victim) has deposed that the Gram Pradhani Election was going on at the relevant point of time, therefore, the false implication is possible. The sister of the victim was sleeping by her side but she has deposed that she could not see the accused-respondent molesting her sister.
16. The record further reveals that victim has not stated that she belongs to scheduled caste, similarly, P.W.-2 and P.W.-3 have also not stated that victim belongs to scheduled caste category, similarly, P.W.4 (Constable Bhupendra Singh) and P.W.-5 (C.O. Santosh Kumar) have also not deposed anything about the offence under SC/ST Act, thus, the charges under SC/ST Act are not proved.
17. The trial court after adducing the evidence available on record has passed the judgment and acquitted the accused-respondent. The judgment is based on evidence available on record and no interference is required, therefore, leave to appeal is rejected, thus appeal is also dismissed.
18. Office is directed to remit back the lower court record to the concerned Court.
Order Date :- 12.7.2023/V. Sinha
