Uttarakhand High Court
State Of Uttarakhand ..Applicant/ vs Ash Mohammad on 14 February, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Leave to Government Appeal No.221 of 2022
In
Government Appeal No. 103 of 2022
State of Uttarakhand ..Applicant/Appellant
Vs.
Ash Mohammad ...Respondent
Presence:
Mr. J.S. Virk, Deputy Advocate General for the State/appellant.
Mr. Mohd. Safdar, Advocate for respondent.
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Pankaj Purohit, J.
This application seeking leave to appeal along with
Delay Condonation Application and Government Appeal, has
been preferred by the State of Uttarakhand against the judgment
and order dated 13.06.2022 passed by learned F.T.S.C./
Additional Sessions Judge, Roorkee, District Haridwar in Session
Trial No. 218 of 2021, "State Vs. Ash Mohammad", whereby the
respondent/accused person was acquitted of the charge under
Section 376 of IPC.
2. Notice was issued to the respondent/accused person
to file objection on the application of condoning the delay in
filing the Government Appeal vide order dated 16.11.2022 and
Mr. Mohd. Safdar, advocate has put in appearance on behalf of
the respondent and sought time to file objection on the Delay
Condonation Application as well as on the application seeking
leave to appeal.
3. Today, the matter is listed before this Court. Despite
opportunity, no objection has come forward from the side of the
respondent/accused person on Delay Condonation Application as
well as on application seeking leave to appeal. This Court
proceeds to hear the parties on both the applications, on the basis
of oral submission/objection made by respondent/accused person.
Delay Condonation Application (IA/1/2022)
4. Heard learned counsel for the parties on the Delay
Condonation Application. As per office report, there is a delay of
64 days in filing the Government Appeal against the impugned
judgment and order. Since, the reasons given by the State in the
Delay Condonation Application supported by the affidavit, are
occasioned in getting the approval to file the appeal against the
impugned judgment and order, therefore, the reasons are
sufficient and well explained. Accordingly, the delay in filing the
government appeal is condoned. Delay Condonation Application
(IA/1/2022) made therefor, stands allowed.
Leave to Government Appeal
5. Heard learned counsel for the parties.
6. It is submitted by the learned Deputy Advocate
General that the case of the prosecution started on a written
report submitted by the victim-complainant at Police Station
Kotwali Roorkee, District Haridwar, wherein, she stated that her
cousin-Ash Mohammad, resident of District Shamli, Uttar
Pradesh used to come to her house and liked her. On 17.12.2016,
he came to the house of the victim, when no one was present
there in the house. He had lunch and started teasing the victim
and committed rape upon her; when the victim (PW-1) told him
that she would sue him and inform the family members, he
threatened her not to disclose anything about the incident to
anyone and stated that he would marry her. It is further stated in
the first information report that respondent/accused took the
complainant/victim at Gurgaon for a job and got appointed her in
a firm. He, on various occasions, also made physical relationship
with the complainant/victim-PW-1 forcibly.
7. On the basis of the aforesaid complaint, on
17.04.2019 at 19:24 hrs., a Case Crime No.286 of 2019 under
Section 376 IPC was registered against the respondent/accused in
Police Station Kotwali Roorkee, District Haridwar. After
investigation, a charge-sheet was submitted and trial proceeded,
wherein, as many as 06 witnesses i.e. PW-1 Victim, PW-2
Mohammad Tahir (mother of the victim/PW-1), PW-3 Constable
Prem Prakash, PW-4 Shubham Sharma, PW-5 Dr. Aastha Gupta
and PW-6 Sub-Inspector Mansa Dhyani, were examined and
documentary evidence was also produced.
8. It is strenuously submitted by learned Deputy
Advocate General that the respondent/accused was wrongly
acquitted by the learned trial court inasmuch as PW-1/victim has
supported the case of the prosecution by deposing during trial
that the respondent/accused Ash Mohammad forcibly made
physical relationship with her on the pretext of marriage. It is also
submitted by the learned Deputy Advocate General that the
version of the victim has been consistent during investigation and
trial. When quizzed by this Court, he admitted that there are
contradictions and inconsistencies in the statement, but according
to him, these are not material enough to enlarge the
respondent/accused.
9. Per contra, learned counsel for the respondent/
accused has strenuously submitted that the case is totally a false
one. The first information report was lodged after a delay of
almost three years and the sequence of incident as narrated in the
first information report reflects that whatever happened between
the victim and the respondent/accused appears to be consensual.
He further submitted that the statement of PW-1/victim is not
believable, where she says that she was ravished under the threat
of life, by keeping a knife on her neck by the respondent/accused.
10. Learned counsel for the respondent/accused further
submits that the story of forcible rape, as narrated by the
victim/PW-1, diminishes its significance when she says that after
the incident, she was taken by the respondent/accused to
Manesar, Gurgaon, where, she was got engaged by the
respondent/accused in a job and there, she was forcibly raped by
the respondent/accused on the promise of marriage.
11. Learned counsel for the respondent/accused took us
to the evidence of the victim/PW-1 and submitted that there are
glaring and material contradictions, and, therefore, the acquittal
recorded by the learned trial court is correct and needs not
interference by this Court.
12. Having heard learned counsel for the parties and
having gone through the impugned judgment and order very
carefully, we are of the view that there is no illegality and
infirmity in the impugned judgment and the respondent/accused
is rightly acquitted by the learned trial court.
13. In this view of the matter, we do not find any reason
to grant leave to appeal against the impugned judgment and
order. Accordingly, the application seeking leave to appeal is
rejected.
14. Consequently, Government Appeal No. 103 of 2022
is also dismissed.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
14.02.2024
PN/-
