State Of U.P. vs Premveer S/O Ramesh
2023 Latest Caselaw 24585 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:176788-DB
 
Court No. - 46
 

 
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 333 of 2023
 

 
Appellant :- State of U.P.
 
Respondent :- Premveer S/O Ramesh
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Ref:- Order on Delay Condonation Application

The delay in filing of the appeal has been explained to the satisfaction of the Court and is otherwise not seriously opposed.

The delay condonation application is allowed.

Ref:- Appeal

This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 12.10.2022, passed by the court below in Special Session Trial No.226 of 2017 (State of U.P. Vs. Premveer), arising out of Case Crime No. 113 of 2017, under Sections 363, 366, 376(3) I.P.C. and Section 3/4 POCSO Act, Police Station- Garhmukteshwar, District- Hapur.

As per the prosecution case, the informant in the present case is the father of the victim who has made a written report stating that the victim aged 14 years has disappeared at 8 P.M. on 06.04.2017 from her home. The written report has been made on 21.04.2017. On the basis of such written report Case Crime No.113 of 2017 was initially registered under Sections 363 and 366 I.P.C. The written report further stated that one Kalam who was working as a labour during laying off sewer and water lines, was seen talking to the victim and the informant apprehends that it is he, who has enticed the victim. Investigation proceeded and, ultimately, a charge sheet was submitted in the matter under Sections 363 and 366 I.P.C. against the accused on 14.07.2017. The cognizance was taken in the matter and the proceedings were committed to the Court of Sessions. An application was later given by the prosecution for adding Section 376(3) I.P.C. and Section 3/4 POCSO Act, on the basis of which, charges were amended by the Court concerned on 15.07.2022.

During the course of trial, the informant has appeared as P.W.-1 and has supported the prosecution case with regard to disappearance of victim on 06.04.2017. The allegation was against Kalam, who is not the accused here. The informant has proved the written report. The informant has stated that on 01.05.2017, he received information that the victim is likely to be recovered and when he came to the Bus Station, Garhmukteshwar, he found his daughter standing near a fruit stall. The victim was identified by the informant. This witness has been confronted with the statement of victim under Section 161 Cr.P.C. wherein she has disclosed her age as 18 years.

The victim has been produced as P.W.-2 and has stated that she was going at 8 P.M. on 06.04.2017 to her Mausi (maternal aunt) when the accused Premveer along with one unknown person met. Premveer administered some intoxicating substance in a hanky and took her in a car. The victim states that she recovered after 3-4 days and she was again given intoxicant and, ultimately, she met the police 25-26 days later at about 8:30 in the Morning. The victim has further stated that she has studied upto class 5th and is married to one Badal. The marriage has been solemnized four months earlier. Initially, the victim denied having given any statement under Section 164 Cr.P.C. The victim was recalled on the application of accused and was confronted with her statement under Section 164 Cr.P.C., wherein, she had clearly stated that she went, on her own volition, with the accused Premveer. However, the victim stated that she was under the threat of Premveer that she made such statement before the Magistrate. In the cross-examination, the victim, however, has not been able to explain, the manner in which, the alleged offence was committed, inasmuch as, she did not remember when she was intoxicated and after how much time she regain consciousness. She also feigned ignorance, as to from where, she has come to the police station. She also admits that no alarm etc. was raised by her even at the police station. She has, however, denied the suggestion that she is in love with accused. The mother of the victim has also appeared as P.W.-3 and has supported the prosecution case. The victim was examined by Dr. Chandra Jha (P.W.-5) who had admitted the examination of victim on 01.05.2017 and, as per the doctor, there was no external or internal injury anywhere on the victim. The victim was internally examined by the doctor with her consent but no abnormality/ injury of any kind was found. The X-ray was conducted on the victim and her age has been determined as 17 years.

The prosecution has also produced the school certificate of the primary institution where the victim allegedly studied. The Headmaster Baburam has been produced as P.W.-7 and he has stated that in the Admission Form No.3792 dated 16.07.2007, the date of birth of victim is recorded as 01.01.2002. The certificate of date of birth issued by the institution has also been proved by the Headmaster. In the cross-examination, the witness P.W.-7 has admitted that he was not posted in the institution when the victim was admitted to school. He has admitted that there was no basis available on record, in respect of, recording of the date of birth.

The trial Court has examined the evidence on record and on the aspect of minority of victim has clearly found that the date of birth mentioned in the school record is not reliable. The reason for coming to such finding is the statement of father and mother of victim, who have failed to disclose the date of birth or even the age of the victim. No certificate of any municipality or hospital etc. has been produced to establish the date of birth of the victim. The medical age of victim, as per the ossification test, has been found to be 17 years. By admitting variation of two years in such age, the trial Court has treated the victim to be a major. The trial Court has, further, found that though the victim remained with the accused for more than 25 days but no complaint was made by her and even when she came to the police station, she did not lodge any protest or raised an alarm. In the medical examination, no external or internal injury has been found on the victim. The trial Court, therefore, has come to the conclusion that the victim was a major on the date of incident and her act of joining the company of accused may have been out of her own volition. A finding has been returned that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt, on the basis of evidence, available in the matter.

Learned AGA although has taken the records of the appeal and has placed the judgment in its entirety but he has not been able to show any perversity or illegality in the judgment of acquittal passed by the court below. Upon cumulative assessment of the material on record, 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 :- 12.9.2023

SP/-