Allahabad High Court
State Of U.P. vs Anil S/O Shishupal on 29 May, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:97908-DB
Court No. - 42
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 130 of 2024
Appellant :- State of U.P.
Respondent :- Anil S/O Shishupal
Counsel for Appellant :- A. K. Sand
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Ref: Criminal Misc. Delay Condonation Application)
Heard.
Delay in filing the present appeal is explained to the satisfaction of the Court. Delay is, accordingly, condoned.
Application stands allowed.
Ref: Appeal
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 3.1.2024, passed by the court below in Special Sessions Trial No.1337 of 2019 (State Vs. Anil), arising out of Case Crime No.182 of 2019, under Sections 376AB, 506 IPC and Section 5/6 POCSO Act, Police Station Kotwali, District Budaun.
As per the prosecution case a written report got lodged on 29.5.2019, by the informant stating that her daughter aged fourteen years was at home at about 9.00 when the relative of the landlord (accused Anil) came and attempted to take the minor victim with him. He also tried to outrage her modesty. On raising of protest by the victim the accused fled. On the basis of investigation conducted in the matter a charge-sheet was submitted against the accused under Sections 376AB, 506 IPC read with Section 5/6 POCSO Act. Cognizance was taken on 9.7.2019. Charges were framed against the accused in the aforesaid sections and after the accused denied the accusations and demanded trial the proceedings of trial commenced.
During trial the victim has been produced as PW-1. The informant's wife has been produced as PW-2. PW-4 is the informant. Doctor Piyush Rastogi has been produced as PW-7. Other witnesses are formal in nature. During trial it has been found that the FIR was promptly lodged on the date of incident itself at 2.29 PM in respect of the incident occurred at 9.00 AM. Even otherwise in matters of sexual assault some delays cannot be frowned upon. The trial court has, therefore, concluded that there was no delay in lodging of FIR.
So far as the age of the victim is concerned, the trial court has found that although informant has alleged that victim is minor and is below twelve years of age but in fact no such evidence has been produced to prove her minority. School records have been produced but the trial court has found that neither there are any scholar register number nor requisite details, as are expected, finds place in the concerned register. Details of the parents are even not mentioned. The Principal of the school (PW-6) has been confronted with these aspects and she has admitted that relevant details as are expected to be incorporated in the scholars register are found missing. In view of the fact that requisite particulars in respect of the students are not mentioned in the scholar register the trial court has disbelieved the prosecution case of minority of victim relying upon such evidence. In the facts of the case we find that the view taken on this aspect is clearly a permissible view. It has also been observed by the court of Sessions that in fact no ossification test was conducted of the victim and although an X-ray of the victim was conducted by the doctor concerned but no opinion with regard to age of the victim has been expressed therein. Relying upon such materials the trial court has observed that the prosecution has failed to establish that victim is a minor. The finding in that regard cannot be said to be illegal or perverse as there is no contra evidence admissible on record.
Victim in her testimony has admitted that she knew the accused from before the incident. On the date of incident she was cleaning the utensils when the accused proposed to marry the victim and the victim denied. It is thereafter that she was taken inside the room and subjected to sexual assault. The victim, however, made no protest at that stage. It appears that the sister-in-law of the accused came and found the couple in compromising position. She raised an alarm, whereafter the incident actually got reported. A report was thereafter lodged in the matter. The trial court on the basis of evidence on record has observed that the victim was major and has admitted that she was known to the accused from before. The victim in her testimony has admitted that she went inside the room on the asking of the accused but did not made any protest. While the alleged act of physical relations was by the sister-in-law of accused then also no protest was made by her. It is admitted that the house contain various other inhabitants but as there was no alarm raised as such there was no occasion for anyone to have intervened. It is only after the sister-in-law of the accused saw them in compromising position and raised an alarm that subsequently a complaint came to be lodged, at the instance of the victim by her father. In the facts of the case and in view of the evidence on record the trial court has taken the view that the possibility that relationship between the parties was consensual cannot be ruled out, particularly when the victim was herself major and had made no protest when physical relations were formed between the parties.
We have been taken through the judgment by the learned AGA, who submits that the trial court has not appreciated the evidence in correct perspective and that the findings returned by the court below are perverse.
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 :- 29.5.2024
RA
