Allahabad High Court
Smt. Anshu vs State Of U.P. And Another on 31 March, 2023
Bench: Ashwani Kumar Mishra, Vinod Diwakar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 47
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 267 of 2021
Appellant :- Smt. Anshu
Respondent :- State of U.P. and Another
Counsel for Appellant :- Bhavya Sahai
Counsel for Respondent :- G.A.
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Vinod Diwakar,J.
This appeal is by the informant challenging the judgment and order dated 19.10.2021, passed by the Special Judge (POCSO Act)/Additional District and Session Judge, Ghaziabad in Session Trial No.248 of 2018, State vs. Surendra Singh, arising out of Case Crime No.2091 of 2018, under Sections 376AB IPC and 5m/6 POCSO Act, Police Station Sahibabad, District Ghaziabad, whereby the accused respondent has been acquitted of the charges levelled against him.
Before referring to the facts it would be worthwhile to notice the relationship between the parties. The victim herein is eight year old minor daughter of one Rajeev. The accused is the uncle of Rajeev. The relationship between the accused and the victim is of granduncle and grand child.
As per the prosecution case on 11.06.2018 at about 06.00 pm the accused inserted his fingers in the private parts of the minor victim who disclosed such fact to her mother (first informant/PW-1). This incident has been reported after a month to police on 12.07.2018. The victim has not been medically examined. Investigation ultimately concluded with submission of charge sheet against the accused, who has been put to trial.
During the course of trial the victim and her mother have supported the prosecution case and have remained consistent with regard to their accusations against the accused. The defence, on the other hand, has produced testimony of DW-1 Smt. Ratan Kaur, who has stated that her husband was employed in Indian Army and has died. She has two sons, namely Mahendra and Surendra. Surendra is the accused in the present case. DW-1 has stated that she is receiving two pensions, one from Indian Army and second as dependent of freedom fighter. She is distributing the pension received by her between her two sons. Her son Mahendra, however, died few years back and the father of victim, namely Rajeev, was insisting upon her to part with pension in equal proportion to him in place of his father Mahendra. There existed a dispute amongst family for such reason as the victim's father wanted a sum of Rs.30 lacs to be paid to him out of pension funds and in order to coerce her to part such sum a false case has been lodged against her younger son Surendra.
Trial court has examined the evidence on record and has returned a finding that the prosecution has not been able to establish its case beyond reasonable doubt. For arriving at such conclusion the trial court has taken into consideration the circumstance of delay of more than one month in lodging the FIR, which remains unexplained. It has also been observed that there is no medical report of victim on record and that the mother of victim alongwith the victim were taken to M.M.G. Hospital on 13.07.2018 but the mother of victim denied her consent for medical examination of victim. The trial court has also taken note of the fact that though sexual assault is alleged upon a minor girl of eight years but her parents have not taken her to any doctor for her treatment or examination. Considering the fact that there was a strong motive for false implication of the accused, the trial court has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt.
Learned counsel for the appellant submits that the testimony of minor victim is consistent alongwith that of her mother and the delay in reporting of offence is not of much significance in such offence. It is also submitted that refusal of mother to accord permission for medical examination of victim also cannot be read or relied upon against the cause of minor victim. Submission is that section 29 of the POCSO Act ought to be attracted in the facts of the present case and the contrary view taken by the trial court is wholly impermissible. Learned counsel argues that in the facts of the present case the acquittal accorded by the court below to the accused is wholly perverse and erroneous, and the judgment of acquittal is therefore liable to be reversed in the present appeal.
We have heard learned counsel for the appellant as also the learned A.G.A. for the State and have perused the records of present appeal as also the lower court records.
The facts as have been noticed above are not in issue. It is noticed that the incident allegedly occurred on 11.06.2018 at 06.00 pm. It remains undisputed that the minor victim has not been taken to any doctor for her treatment which is a relevant factor in our estimation and has rightly been relied upon by the court below against the appellant. The additional factor to be noticed in the facts of this case is that no plausible explanation has been given for delayed lodgement of report in the matter. Admittedly, the FIR has been lodged after a month on 12.07.2018. Absolutely no reason for such inordinate delay has been put forth by the prosecution. It is also admitted on record that the victim was taken to hospital on 13.07.2018 when the mother of victim has denied her permission for medical examination of the victim. In the absence of any medical examination the corroboration of the allegations made by the prosecution cannot be ascertained.
Notwithstanding the aforesaid deficiencies pointed out on part of the prosecution, we may have been inclined to give weightage to the case of prosecution but for the evidence led by the prosecution with regard to existence of strong motive for false implication of the accused. The relationship of parties herein are of granduncle and grandchild. The mother of the accused, who happens to be great grandmother of the victim has appeared as a witness and has stated that the father of victim was pressuring her to part approximate Rs.30 lacs which has been received by her from the Indian Army and as dependent of freedom fighter. There is absolutely no reason why a great grandmother would depose against own great granddaughter who is hardly eight years of age. In our opinion the view taken by the court below to acquit the accused respondent in the facts of the present case is clearly a permissible view and merely because a different view could be taken in the matter would hardly be a ground to interfere with the judgment of acquittal in view of the law settled on the issue.
In such circumstances, we are not inclined to entertain the present appeal in the facts of the case, as also considering the advance age of the accused respondent who has otherwise has no criminal history. The appeal is, accordingly, dismissed.
Office is directed to remit back the lower court records.
Order Date :- 31.3.2023
Ashok Kr.
