Allahabad High Court
State Of Up vs Dabbu Singh Alias Ramesh Singh S/O Vijay ... on 21 November, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:181611-DB
Court No. - 43
Case :- GOVERNMENT APPEAL DEFECTIVE No. - 324 of 2024
Appellant :- State of U.P.
Respondent :- Dabbu Singh Alias Ramesh Singh S/O Vijay Pratap Singh
Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Dr. Gautam Chowdhary,J.
ORDER ON DELAY CONDONATION APPLICATION NO. 01 OF 2024
1. Delay of 111 days in filing the appeal has been explained to the satisfaction of the Court.
2. Delay in filing the leave to appeal is condoned.
3. The delay condonation application is, accordingly, allowed.
ORDER ON CRIMINAL MISCL (LEAVE TO APPEAL) APPLICATION
4. This appeal is by the State along with an application for grant of leave to challenge the judgment of acquittal dated 03.04.2024 passed by the learned Additional Sessions Judge/ Special Judge Exclusive Court (POCSO Act), Basti in Special Session Trial No. 99 of 2018 (State Vs. Dabbu Singh alias Ramesh Singh), arising out of Case Crime No. 175 of 2018, under Sections 354-A, 452, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Dubaulia, District Basti.
5. Briefly stated, the prosecution case is that the accused is the neighbour of the victim, who often enters her house and touches her private parts and outrages her modesty. The accused also insists to establish relations with the victim. When the victim stated that she will tell such facts to her husband, the victim was threatened on the ground that her husband would be harmed. When the victim complained to other members then too she was threatened of harm to her. On 01.08.2018 at about 10:30 p.m. the accused again entered the house and outraged her modesty and on her raising of alarm the accused fled, thereafter she has come to lodge the F.I.R. On the basis of such report Case Crime No. 175 of 2018, under Sections 354-A, 452, 376 I.P.C. was registered at Police Station Dubaulia, District Basti. The statement of the victim was recorded under Section 161 and 164 Cr.P.C., whereafter a charge sheet was submitted against the accused under Sections 354-A, 452, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act. The concerned court framed charges in the aforesaid sections, which were denied by the accused, thereafter, the trial proceeded.
6. At the stage of conclusion of investigation the victim was found to be minor. This view, however, has not been accepted by the trial court in view of the fact that the radiological age of the victim has been found to be 18 years. The only other material relied upon by the prosecution to establish the minority of the victim is her transfer certificate of Class-VI. This transfer certificate has also been proved by the Head Master, who appeared as P.W.5. The trial court, however, has disbelieved the transfer certificate for the purposes of determining the age of the victim in as much as no basis has been disclosed for recording of her date of birth in Class-I admission of the victim. Neither any certificate of municipality has been produced nor the witnesses have otherwise disclosed the exact date of birth of the victim. In such circumstances, the trial court has disbelieved the transfer certificate and relying upon the medical evidence of age the victim has been held to be major. This view of the trial court is a permissible view in view of the law laid down by the Supreme Court in the case of P. Yuvaprakash Vs. State Represented by Inspector of Police : (2023) Livelaw SC 1898 of 2023.
7. The trial court has evaluated the statement of the victim and has found her not to be a sterling witness in as much as there has been material improvement in her versions later from what was initially disclosed in the F.I.R. In the F.I.R. the victim has not alleged rape. However, in the statement under Section 164 Cr.P.C. and also in her statement before the court the victim has alleged rape by the accused upon her. The evidence otherwise shows that apart of the victim there were other family members residing in her house. Though it is alleged that the incident occurred in the house at 10:30 p.m. but no other evidence has come forward to support the prosecution case. The medical examination of the victim also shows no external or internal injuries found on the victim. The victim otherwise was married and therefore no exception can be taken to the fact that hymen was found old torn and healed. The trial court has also taken note of the statement of the accused recorded under Section 313 Cr.P.C. wherein he has stated that the victim was raising a boundary on his land some time prior to the incident which was opposed by him and as a counter blast he has been falsely implicated. The trial court has otherwise found contradictions in the version of the victim which admittedly found no corroboration. The victim was otherwise found not consistent. It is for these reasons that the trial court has disbelieved the victim, as she has not been accorded status of sterling witness and consequently the accused has been acquitted by granting him benefit of doubt. No illegality or perversity is shown in the judgment of acquittal which may require this Court to interfere in the matter.
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 :- 21.11.2024
Mustaqeem.
