Allahabad High Court
State Of U.P. vs Shahzad And Others on 10 August, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:161566-DB Court No. - 46 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 357 of 2023 Appellant :- State of U.P. Respondent :- Shahzad And Others Counsel for Appellant :- Ashutosh Kumar Sand Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
Ref:- Order on Delay Condonation Application The delay in filing of the appeal has been explained to the satisfaction of the Court and is otherwise not seriously opposed.
The delay condonation application is allowed.
Ref:- Appeal This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 12.01.2023, passed by the court below in Special Case no.121 of 2018 (State of U.P. Vs. Shahzad and others) and Special Case No.157 of 2018 (State of U.P. Vs. Hussain), arising out of Case Crime No. 205 of 2018, under Sections 363, 376D IPC and Section 3/4 POCSO Act, Police Station Chilkana, District Saharanpur.
As per the prosecution case, on 17.06.2008 the informant (P.W.-2) had gone to his in-laws house leaving behind his daughter at home who was 17 year old. On account of fever, the daughter of P.W.-2 was taken by her grand mother to the doctor's shop situated outside the village. The shop was found closed. The grand mother left in search of the doctor to his house and in her absence the accused Shahzad enticed the victim to the nearby field where four other accused were present, all of whom, sexually assaulted the victim. The F.I.R. was lodged on the next date when the informant returned. On the basis of such allegations, F.I.R. came to be registered as Case Crime No.205 of 2018 under Sections 363, 376D I.P.C. read with Section 3/4 POCSO Act. On the basis of investigation carried out in the matter, ultimately, a charge-sheet was submitted against accused. The accused denied the allegations and demanded trial.
During the course of trial, the informant has appeared as P.W.2 and has supported the prosecution case. P.W.2, however, has admitted that he was not present in the village when the incident occurred and, therefore, not much importance could be attached to the testimony of the informant. The victim has appeared as P.W.1 and has supported the prosecution case. The doctor who has examined the victim has also appeared as P.W.3. On the basis of evidence adduced by the prosecution at the trial, the Court below has come to the conclusion that prosecution has failed to establish its case beyond reasonable doubt.
We have been taken through the judgment of acquittal by learned AGA in order to submit that the conclusions drawn by the Court below are perverse.
So far as, the age of the victim is concerned, a specific issue has been framed by the Court below and evidence has been collected in that regard. As against the prosecution case of victim being 17 years of age, the defence has produced the original certificates and school records of the primary institution where the victim studied from a perusal of which it transpires that, in fact, on the date of incident the victim was about 19 years 6 months old. We have carefully examined the judgment of the Court below and we find no illegality in so far as the finding is returned by the Court below with regard to the victim being major, on the basis of school records of the victim which is duly proved.
So far as the allegation with regard to the act of sexual assault is concerned, we have examined the judgment of the trial Court which has taken note of the contradictions in the testimony of the witness inasmuch as in the F.I.R., allegations are that the doctor's shop was closed whereas in her testimony the victim has stated that the shutters were up although the doctor was not present. The Court below has disbelieved the testimony of victim after noticing the fact that the initial case of the victim was that nobody was present and the shop was closed, but in her oral deposition she has stated that shutters were open and all the accused were around the doctor's shop. The Court below has found the prosecution case to be wholly unreliable inasmuch as merely on account of fever the grand mother is not expected to leave her young minor grand daughter alone in the doctor's shop particularly when there are five young persons present there. The grand mother, with whom the victim is alleged to have gone to the doctor's place has also not been produced. In the medical examination also no external or internal injuries have been found which belies the prosecution case with regard to gang rape. Other contradictions have also been noticed in the testimony of the victim for disbelieving her version.
We have carefully examined the judgment of the court below and upon its examination we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances, we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, 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 :- 10.8.2023 SP/-