Allahabad High Court
State Of U.P. vs Timraj S/O Phool Singh on 14 March, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 116 of 2023
Appellant :- State of U.P.
Respondent :- Timraj S/O Phool Singh
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 26.09.2022 passed by Additional Sessions Judge/Special Judge (POCSO) Court No. 1, Meerut in POCSO Case No. 155 of 2017 (State Vs. Timraj), arising out of Case Crime No. 167 of 2017, under Section 363 IPC and Section 3/4 of POCSO Act, Police Station Bhawanpur, District Meerut.
As per the prosecution, the victim aged about 17 years has been enticed by the accused at about 12'O clock on 05.05.2017 thereafter a report was lodged on the next day i.e. 06.05.2017. The victim allegedly was going towards beauty parlor for some training. The victim was subsequently recovered and the investigation ultimately concluded with the submission of a charge-sheet against the accused.
During the course of trial, it has transpired that the victim was not medically examined since she had refused to record her consent for such purposes. The victim in her statement neither to the police nor before the court has deposed about alleged commissioning of act of sexual assault upon her. It has further come on record that the victim solemnized marriage with the accused and such marriage was also registered on 28th April, 2017 at Meerut. Court below has found material contradiction in the stand of the victim with regard to the manner in which the alleged offence has been committed. The victim otherwise has not supported the prosecution case as was originally alleged in the complaint. In the cross examination, the victim has clearly stated that she has solmenized marriage with the accused with whom she is in love.
The prosecution has come out with the case that victim is a minor and, therefore, her consent is not material. This case is based upon a school certificate of class-vii; where the victim was admitted for the first time. The officiating principal of the institution has appeared as PW-7 and has stated that no documents relating to previous school of the victim was provided to the institution and only on the basis of disclosure made by the parents, age of the victim has been recorded in school records. The trial court has found the school certificate not to be reliable with regard to the date of birth of victim being 21.01.2001. The age of the victim was got determined by the medical board wherein she was found to be 17 years of age. While allowing two years variations for such opinion, the trial court has therefore treated the victim to be major and has consequently come to a conclusion that the prosecution has failed to establish its case against the accused beyond reasonable doubt.
Though, we have been taken through the judgment by the learned A.G.A. in order to demonstrate perversity in the view taken by the court below but no such perversity could actually be demonstrated to us.
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 ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances, 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 :- 14.3.2023
Shafique
