State Of Uttarakhand vs Ompal
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Uttarakhand High Court

State Of Uttarakhand vs Ompal on 5 July, 2024

Author: Pankaj Purohit

Bench: Manoj Kumar Tiwari, Pankaj Purohit

HIGH COURT OF UTTARAKHAND AT NAINITAL

          Special Leave to Appeal No.287 of 2024
                             With

           Government Appeal No.181 of 2024

State of Uttarakhand                         ........Appellant
                           Versus

Ompal                                        ........Respondent
Present:-
      Mr. K.S. Bora, learned Deputy Advocate General for the
      State/appellant.

                         JUDGMENT

Coram: Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Hon'ble Pankaj Purohit, J. (Oral) Delay Condonation Application (IA No.1/2024)

There is delay of 242 days in preferring this appeal.

2. On being satisfied for the reasons, so furnished, the delay in filing the appeal is condoned. Delay condonation application stands disposed of accordingly.

Special Leave to Government Appeal.

3. By way of this application, the State seeks to file the leave against the judgment and order dated 24.07.2023, passed by learned Additional Sessions Judge/F.T.S.C., Rudrapur (Udham Singh Nagar) in Special Sessions Trial No.944 of 2018, State vs. Ompal, whereby the said court has acquitted the respondent- accused for the charge of offence punishable under Section 376 r/w 511 IPC as also under Section 8 of the POCSO Act.

4. In nutshell, the facts of the case are that the informant along with his wife had come to Kashipur for job in a company. The accused was also working in that company. On 17.10.2018 at about 10-11 of night, informant had gone for the treatment of his wife and at that time, his daughter (victim) was alone at the house. At that time, the accused entered the house of informant and tried to commit rape upon her. On receiving information, the informant returned home and informed the police.

5. Total six witnesses were produced on behalf of prosecution. The statement of accused was also recorded under Section 313 of Cr.P.C. The trial court at the end of trial came to the conclusion that the prosecution failed to prove its case against the accused beyond all reasonable doubt and accordingly, it acquitted the accused. Hence, this appeal with an application for leave to appeal.

6. It is an admitted case of the prosecution that during trial the victim had died in Covid Pandemic and hence her statement could not be recorded before the court. Her statement under Section 164 Cr.P.C. though was recorded, but it was really a very brief statement. The trial court recorded the finding that it is well settled that the evidence recorded under Section 164 Cr.P.C. is not a substantive piece of evidence. The trial court also recorded a finding that PW3 although had stated that he had seen the accused and victim in his house, however, he could not disclose as to what the source of light available in that room to identify both of them.

7. The accused in his statement recorded under Section 313 Cr.P.C. has also stated that there was a dispute between him and the informant regarding some

money transaction. The trial court also admitted the presence of PW4 at the alleged time of occurrence. Moreover, the Investigating Officer also failed to prepare any site map of the place of occurrence. The trial court also noted that PW1 and PW2 are the parents of victim and their evidence is based on hearsay evidence.

8. Accordingly, the trial court came to the conclusion that the prosecution failed to prove its case against the accused beyond all reasonable doubt and it accordingly acquitted the accused.

9. We are in full agreement with the findings recorded by the trial court. Nothing substantial could be argued by learned State Counsel so as to warrant any interference in the judgment passed by trial court. Accordingly, application seeking leave to appeal is rejected.

Government Appeal No.181 of 2024

10. Since we have declined to grant leave accordingly, this Government Appeal is also dismissed.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari,J.) 05.07.2024 AK