Allahabad High Court
State Of U.P. vs Arun Tiwari S/O Badri Prasad And 03 ... on 1 March, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 90 of 2023
Appellant :- State of U.P.
Respondent :- Arun Tiwari S/O Badri Prasad And 03 Others
Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
Delay in filing of the appeal has been explained to the satisfaction of the court.
Delay condonation application is allowed. Delay in filing of appeal is condoned.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 17.08.2022 passed by Additional Sessions Judge, Fast Track Court No. 1/(Crime against Women), Fatehpur in Sessions Trial No. 133 of 2012 (State Vs. Arun Tiwari and others) arising out of Case Crime No. 197 of 2011, under Sections 363, 376, 323, 506 and 120B IPC, Police Station Kishanpur, District Fatehpur, whereby the accused-respondents have been acquitted of the charges levelled under Sections 366, 376, 323, 506/120B I.P.C.
Informant herself has lodged a written report stating that on 29th November, 2011 when she was returning from her college at about 2:00 p.m. and reached the bus stop, her brother-in-law (accused) met her and informed that her mother is not well and on such premise made her to sit on the motorcycle on which another person was already riding and left on the pretext of going to Khaga. The informant was later made to sit in a four wheeler and was taken to Delhi from where she was brought to Lucknow and ultimately back to Fatehpur. The FIR has been lodged on 7th December, 2011 while the incident of kidnapping the victim occurred on 29th November, 2011. On the basis of investigation undertaken in the matter ultimately a charge-sheet was submitted.
The evidence has been scanned by the court below wherein it transpired that the age of the victim was more than 18 years 4 months and 9 days as per the admitted records on the date of incident. The testimony of the victim in complaining against the accused has not been found reliable inasmuch as it was admitted by the victim that she travelled to different places by a car and later returned by a public transport without raising any protest. The alleged kidnapping has also not been found reliable as the victim was taken from a bus stand which was a public place and she had ample opportunity to raise a protest.
The medical examination of the victim has not shown any signs of external or internal injury. PW-4 who is a doctor has therefore opined that no definite opinion with regard to the rape can be expressed in the matter. The contradictions in the statement of the victim has also been noticed in order to come to the conclusion that the incident was an act of the victim willfully joining the company of the accused and later in order to create a justification a different narration has been made to the family members.
The learned A.G.A. has taken us to the finding of the trial court but could not show any perversity in the order neither on the factual assertion nor on law. In our opinion, the view taken by the court below is clearly a permissible view, particularly when the medical examination does not support the commissioning of offence and the testimony of victim has not been found credible.
In that view of the matter, we decline the prayer made in this appeal for grant of leave to challenge the appeal. Consequently the appeal fails and is dismissed.
Order Date :- 1.3.2023
Shafique
