Allahabad High Court
State Of U.P. vs Akash S/O Pappu on 29 May, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:97907-DB
Court No. - 42
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 129 of 2024
Appellant :- State of U.P.
Respondent :- Akash S/O Pappu
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 11.1.2024, passed by the court below in Special Sessions Trial No.1606 of 2018 (State Vs. Akash), arising out of Case Crime No.81 of 2018, under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Loha Mandi, District Agra.
Informant in the present case has lodged a written report stating that while she was alone on 29.3.2018 at about 11.00 PM alongwith her minor sister aged fifteen year (the victim) and her family members had gone out, the accused, who lived in a near-by house, came and enticed the victim. The act of accused taking the victim with him has been seen by Hanuman and Mahendra. On such allegations Case Crime No.81 of 2018 was registered under Sections 363, 366 IPC. Subsequently various sections were added and ultimately charge-sheet was submitted under Sections 363, 366, 376 IPC read with 3/4 POCSO Act. The concerned POCSO Court took cognizance in the matter on 3.7.2018 and committed the case to the Court of Sessions where it got registered as Sessions Trial No.1606 of 2014. Charges were framed under Sections 363, 366, 376 IPC read with 3/4 POCSO Act.
In support of prosecution case the victim has appeared as PW-3, while the informant has been produced as PW-1. Mother of the victim has been produced as PW-2. Other witnesses are formal witnesses. The doctor who had medically examined the victim has been produced as PW-9.
First and foremost the court below has examined the issue relating to the minority of the victim. In that regard school certificates were produced in order to demonstrate that victim was below eighteen years of age. The court of Sessions has, however, found that those school certificates produced contained various over-writings and those records were not reliable. The original records in that regard were otherwise not produced. The school records for the purposes of determination of age of minor has, therefore, been discarded. The court below has taken note of the fact that victim was medically examined in which her age on the basis of ossification test has been determined as eighteen years. The victim, in such circumstances, has been found to be a major. The finding on this aspect of the matter appears to be based on the evidence on record and no illegality could be attributed to it.
During the course of trial the informant and victim's mother has supported the prosecution case but the testimony of the victim has been doubted by the court below. Victim in her examination-in-chief has stated that on a grievance raised by her sister that she was allowed to sleep till late her mother slapped her and being annoyed she came out of her house. It was then that the accused met her and took her to his house where she was offered food etc. The victim claims that thereafter she fainted and later on she was subjected to sexual assault in the presence of all family members. The victim further stated that the family members took her to a temple where her marriage was got solemnized with the accused. There were various relatives present at the place of marriage. It is alleged that a forged transfer certificate had been relied upon to facilitate the marriage between the parties.
The victim subsequently returned and her statement was recorded under Section 164 Cr.P.C. Relying upon the evidence on record the trial court has found that the victim had voluntarily left her house and had gone with the accused upon being annoyed with her mother. The victim otherwise was major and was capable of taking a decision. The victim although has alleged that she was enticed by the accused or that her marriage was solemnized against her wishes but it is admitted to the victim that no protest was made when she was taken to the temple where her marriage was solemnized. No protest of any king was made by the victim. The medical examination of the victim otherwise does not demonstrate existence of any external or internal injuries on the victim. Upon evaluation of the evidence on record the trial court has come to the conclusion that the possibility of victim having voluntarily joined the company of accused cannot be ruled out in the facts of the present case. It is with this finding that the trial court has granted benefit of doubt to the accused, who has been acquitted.
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
