Allahabad High Court
State Of U.P. vs Pavnendra [email protected] S/O Shari ... on 1 March, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 85 of 2023
Appellant :- State of U.P.
Respondent :- Pavnendra [email protected] S/O Shari Shanker Sharma And Another
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 12.09.2022 passed by Additional District and Sessions Judge (Fast Track), Court No. 1, Aligarh in Sessions Trial No. 822 of 2007 (State Vs. Pavnendra Kumar alias Pannu and another) arising out of Case Crime No. 175 of 2004, under Sections 366 and 376 (g) IPC, Police Station Iglas, District Aligarh, whereby the accused-respondents have been acquitted of the charges levelled under Sections 366 and 376 (g) I.P.C.
Prosecution case is that the accused had attempted to entice the informant's daughter about two months back but they were not successful. This incident was not reported just to protect the prestige of the family. Further again on 06.06.2004, when the victim had gone to ease herself towards jungle she did not return and the accused was seen going in the similar direction. Later it came to the knowledge of the victim that the accused persons have enticed the victim. The investigation concluded with the submission of a charge-sheet against the accused.
The victim has been recovered and her statement has been recorded under Section 164 Cr.P.C. in which she has not supported the prosecution case and has stated that she was compelled to implicate the accused respondents. It has further come in evidence that the victim has subsequently married one Mahipal and has also come to this court for grant of appropriate protection and is living with Mahipal since 2004.
During the course of trial, the doctor who has medically examined the victim has been produced who has verified the medical papers as per which the victim was found to be major. Different affidavits were filed before the court as per which the victim was found to be 20 years of age. The medical examination of the victim otherwise does not show any external or internal injury caused to her. Sofaras the testimony of victim in court is concerned the court below has found that she was not consistent in her testimony and the prosecution case has not been fully supported by her. The trial court has also found the testimony of the victim to be unreliable and the statement that after committing rape the victim was left in the public place was termed suspicious. The trial court has also found that the victim being a major, her act in going with the accused is indicative of her act being consensual. The delay of six days in lodging of the FIR has also not been explained. By taking cumulative assessment of the evidence on record, the trial court has returned the finding that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt.
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
