Allahabad High Court

State Of U.P. vs Mohd. Shareef S/O Sri Shah Mohammad on 13 November, 2024

Bench: Ashwani Kumar Mishra, Gautam Chowdhary





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:178226-DB
 
Court No. - 43
 

 
Case :- GOVERNMENT APPEAL No. - 913 of 2024
 

 
Appellant :- State of U.P.
 
Respondent :- Mohd. Shareef S/O Sri Shah Mohammad
 
Counsel for Appellant :- Ashutosh Kumar Sand
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Dr. Gautam Chowdhary,J.

This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 14.6.2024, passed by the court below in Sessions Trial No.82 of 2010 (State Vs. Mohd. Shareef), arising out of Case Crime No.627 of 2008, whereby accused-respondent has been acquitted under Section 376 IPC, Police Station Brijmanganj, District Maharajganj.

Informant is the mother of the victim, who is a widow and has minor children to look after. She alleges that on the false pretext of marriage the accused has sexually assaulted her daughter whereafter she became pregnant and the accused has refused to marry her. It is thereafter that the First Information Report has been lodged in the matter. Statement of the victim has been recorded under Sections 161, 164 Cr.P.C. and on the conclusion of investigation a charge-sheet was submitted against the accused under Section 376 IPC. Charges were framed by the court of Sessions after committal of case and after the accused denied the accusation the trial commenced in the matter.

The prosecution has produced informant as PW-1, whereas victim has been produced as PW-2. Dr. Abha Gupta, who had medically examined the victim has been produced as PW-3. Dr. V.P. Singh has been produced as PW-6. Other witnesses are formal witnesses most of whom are police personnel. Various documentary evidence have also been produced by the prosecution including the medical examination report of the victim, dated 24.5.2014 as well as supplementary medical report of the same date. The ultrasound report as well as X-ray report dated 21.11.2022 has also been produced during trial.

The evidence of prosecution was confronted to the accused, who stated that a false case has been instituted against him on account of election dispute. The wife of the accused at the relevant point of time was the Pradhan and prior thereto he himself was the Pradhan. The informant was selling spurious country made liquor in respect of which a report was lodged on account of which the informant has falsely implicated the accused. Various documents including complaints sent to various forum have been brought on record. Trial court on the basis of above evidence has come to the conclusion that prosecution has failed to establish its case beyond reasonable doubt.

Learned AGA has taken us through the judgment of acquittal in order to submit that prosecution evidence has been misread and misconstrued, and that the acquittal of accused on the strength of evidence on record is impermissible.

In the facts of the case the trial court has framed solitary issue for determination i.e. whether the victim was sexually assaulted against her wishes by the accused or not? The informant has alleged that on false pretext of marriage the accused committed sexual assault upon the victim and made her pregnant.

PW-2, who is the victim has stated that it was only once that she was sexually assaulted by the accused. She then stated that it was on account of such sexual assault that she became pregnant. In her testimony the victim has stated that after four months of the sexual assault she became pregnant and this fact was disclosed by victim to her mother when she was carrying pregnancy of eight months. This statement of the victim has been disbelieved on the ground that the version that after four months of sexual assault victim become pregnant is an impossible eventuality. It has otherwise come on record that victim was already married. She was regularly having physical relations with her husband. The possibility of victim having became pregnant on account of her physical relations with her husband is a distinct possibility and, therefore, the allegation that four months after physical relations were forcibly formed with the victim by the accused that she became pregnant has been discounted. The victim has, moreover, stated that after the incident it was for the first time that she met the accused and had identified him in court. The name of the accused has been disclosed as Shareef, whereas the person accused of the offence was named as Shafeeq. The subsequent version that Shareef and Shafeeq are same persons has also been doubted.

The trial court has primarily disbelieved the victim on the ground that in her testimony she has clearly stated that while she was married in case if the accused had married her she would have no objection in that event no FIR would have been lodged. This clearly indicate that the victim forcibly wanted to marry the accused notwithstanding the victim that accused was otherwise married. The trial court has also found substance in the defence version under Section 313 Cr.P.C., inasmuch as the wife of the accused admittedly was the Pradhan and the suggestion that it was due to electoral enmity that he was falsely implicated is found to be a distinct possibility. The trial court has also noticed that the prosecution has not obtained any DNA report in respect of paternity of the child. The version of the victim that she give birth to a dead child who was buried without any DNA report having been collected is also a circumstance which has been relied upon to disbelieve the prosecution case. Trial court for elaborate reasons based on the evidence on record has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt. The view taken by the trial court is clearly a permissible view. By granting benefit of doubt to the accused the court of Sessions has acquitted the accused.

Law is 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."

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, thus do not find any good ground to entertain the present appeal. The prayer made by the State for grant of leave is refused. The appeal, consequently, fails and is dismissed.

Order Date :- 13.11.2024