State Of Up vs Rais And Others
2024 Latest Caselaw 36153 ALL

Allahabad High Court

State Of Up vs Rais And Others on 5 November, 2024

Bench: Ashwani Kumar Mishra, Gautam Chowdhary

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:173225-DB
 
Court No. - 43
 
Case :- GOVERNMENT APPEAL No. - 321 of 2023
 
Appellant :- State of U.P.
 
Respondent :- Rais And Others
 
Counsel for Appellant :- A. K. Sand
 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Dr. Gautam Chowdhary,J.

1. This appeal is by the State along with an application for grant of leave to challenge the judgment of acquittal dated 24.03.2023 passed by the learned Additional District Judge/ Additional Special Judge (POCSO Act), Court No. 14, Saharanpur in Session Trial No. 65 of 2016 (State Vs. Rais and others), Session Trial No. 27 of 2017 (State Vs. Mateen) and Session Trial No. 108 of 2016 (State Vs. Rais), arising out of Case Crime No. 116 of 2016, under Sections 363, 366, 467, 468, 471, 420, 120-B I.P.C. and Section 7/8 of Protection of Children From Sexual Offences Act, Police Station Deoband, District Saharanpur.

2. The informant in the present case is the maternal uncle of the victim, who has alleged that the victim is aged about 16 years and was studying in Class-XI. She had gone for tuition on 03.02.2016 at 4:00 p.m., but did not return. When inquiry was made it was found that the victim has been enticed by the accused along with his brother in an Ambassador Car and she could not be traced. With these allegation a first information report was initially lodged under Sections 363, 366 I.P.C. The investigation proceeded in the matter and ultimately a charge sheet was submitted against the accused under Sections 363, 366, 120-B, 420, 467, 468, 471 I.P.C. read with Section 7/8 of Protection of Children From Sexual Offences Act. The concerned Magistrate took cognizance and committed the case to the Court of Session whereas it got registered as Session Trial No. 65 of 2016. Charges were framed against the accused-Rais on 27.02.2017 under Sections 363, 366 read with Section 120-B, 420, 467, 468, 471 I.P.C. and Section 5/6 of Protection of Children From Sexual Offences Act, whereas charges against the accused-Mateen were framed on 20.03.2018 under Sections 363, 366 read with Section 120-B, 376, 467, 468, 471 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act. Charges were also framed against the accused-Sadiq on 20.07.2017 under Sections 363, 366 read with Section 120-B I.P.C. and Section 7/8 of Protection of Children From Sexual Offences Act. All the accused denied the charges levelled against them and demanded trial.

3. During the course of trial, the informant has appeared as P.W.1 and has supported the prosecution case. P.W.1 has alleged that on the basis of fabricated documents the accused wanted to demonstrate that it was a case of voluntary marriage between the parties. The informant has also proved the written report lodged in the matter on 11.02.2016. In the cross examination, P.W.1 has admitted that the victim has two different names and there are contradictions with regard to her date of birth in two different institutions. P.W.1 has also admitted that in the voter identity card of the victim issued on 24.09.2015 her year of birth is mentioned as 1997.

4. The victim has been produced as P.W.2. She has proved her statement made earlier before the Magistrate under Section 164 Cr.P.C., wherein she has clearly stated that she had gone with the accused-Mateen on her own initially to Saharanpur, whereafter, she visited Chandigarh and then Delhi. Thereafter she left with the accused-Mateen for Bombay and later returned to Saharanpur. She continuously remained with the accused-Mateen and there was no overt act committed upon her by any of the accused. She has denied the prosecution case that her signatures were obtained by threatening her or that the accused-Mateen had committed rape upon her. During the course of trial also the victim (P.W.2) has not supported the prosecution case and has clearly stated that she had gone on her own with the accused-Mateen. The victim has also stated that she had filed a petition before the High Court and later on she was produced before the court at Saharanpur. She has further stated that she along with the accused-Mateen were apprehended from Shimla. After the victim refused to support the prosecution case, she was declared hostile on the request of the prosecution.

5. The victim has further stated that she has married the accused-Mateen and out of said wedlock a female child is also born, which fact is known to all family members.

6. During the course of trial the prosecution has proved the medical evidence relating to age of the victim in the form of a certificate issued by the Chief Medical Officer, according to which the victim was aged 18 to 19 years. The trial court has nevertheless evaluated the evidence on record and has come to conclusion that on the date of incident the victim was minor. However, so far as committing of the offence of rape and other charges against the accused is concerned, the court below has come to conclusion that the charges in that regard have not been found proved beyond reasonable doubt. For coming to such conclusion the trial court has noticed the statement of the victim in her testimony before the court as also under Section 164 Cr.P.C. wherein she has not supported the allegation of rape. No other evidence in that regard has been brought on record. The victim has otherwise admitted that she is happily residing with the accused-Mateen and is a mother of three year old girl born out of the wedlock with the accused. In the facts and circumstances of the case, the trial court has acquitted the accused of the charges levelled against them by granting benefit of doubt.

7. Although, learned A.G.A. states that on the date of incident the victim was minor and, therefore, her consent would be immaterial, however, we are not persuaded to accept such submission in view of the fact that the victim herself has not supported the prosecution case, at the stage of trial, or at the stage of recording of her statement under Section 164 Cr.P.C. At the time when the trial court has delivered the judgment the victim was above 18 years of age and was happily living with the accused along with her daughter. In such circumstances the conclusion drawn by the trial court that the prosecution has failed to prove guilt of the accused beyond reasonable doubt, is clearly a permissible view.

8. Law is otherwise settled that ordinarily a judgment of acquittal will not be interfered with, unless perversity or illegality is shown. The scope of interference by High Court in matters of acquittal by trial court has been considered by the Apex Court in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561. Para 39 and 40 of the judgment are relevant for the present purposes and are reproduced hereinafter:-

"39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-

(a) That the judgment of acquittal suffers from patent perversity;

(b) That the same is based on a misreading/ omission to consider material evidence on record;

(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."

9. Upon evaluation of evidence so led in the matter, we find no perversity in the judgment so as to interfere with the findings returned by the court concerned, inasmuch as the conclusions drawn by the Judge concerned are clearly permissible in view of the evidence placed on record. No misreading or omission of evidence is pointed out, either. It cannot be said that only the view consistent with the guilt of accused is possible from the evidence on record. We find that neither any triable issue is raised before us in this appeal nor any perversity is shown in the judgment of acquittal, 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 :- 5.11.2024

Mustaqeem.