Allahabad High Court
State Of U.P. vs Ram Ashish Yadav Urf Gabbar Yadav on 13 December, 2024
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:195341-DB Court No. - 43 Case :- GOVERNMENT APPEAL No. - 1201 of 2024 Appellant :- State of U.P. Respondent :- Ram Ashish Yadav Urf Gabbar Yadav Counsel for Appellant :- Ashutosh Kumar Sand Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
1. This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 6.9.2024, passed by Additional District & Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi, in Special Sessions Trial No.527 of 2020 (State Vs. Ram Ashish Yadav Urf Gabbar Yadav), arising out of Case Crime No.162 of 2020, under Section 354, 376/511, 506 IPC & Section 7/8 POCSO Act, Police Station Chaubeypur, District Varanasi.
2. Father of the victim has made a written report stating that the victim is a student of Class-VII and her date of birth is 7.6.2008. She was going to Toilet at about 10.00 in the night on 22.3.2020 when the accused gagged her mouth and showed her obscene video and tried to commit rape upon her. The victim was also threatened that unless she obliges he would post the victim's nude photographs on the internet. The victim somehow fled from the custody of the accused and told the incident to the family members. It was in the morning that helpline no.112 was informed. The informant also alleged that three days earlier to the above incident, the younger brother of the victim, studying in Class-I, was also told that if he did not send his sister to the accused, she would not be able to show her face to anyone. With these contents the FIR came to be lodged in the present case under Section 354, 376/511, 506, 509 IPC & Section 7/8 POCSO Act. The statement of victim was recorded under Sections 161 and 164 Cr.P.C., whereafter the chargesheet was submitted against the accused under Section 354, 376/511, 506 IPC & Section 7/8 POCSO Act. The concerned court took cognizance in the matter and charges were framed, which were denied by the accused and consequently the trial commenced.
3. The prosecution in order to prove its case has produced the victim as PW-1 while the informant has also appeared as PW-2. PW-3 is Head Constable Pramod Kumar Singh, who is a formal witness. PW-4 is the Headmaster of the institution where the victim was studying. PW-5 and PW-6 are also formal police witnesses. Various documents including school register and admission form of the victim have also been produced during the course of trial. The evidence led by the prosecution was confronted to the accused, who feigned ignorance about the case and has admitted that investigation is faulty and incorrect. The accused has stated that he is innocent and is already married and has two children. The accused has stated that he had a dispute with the informant over discharge of water from the drain, on account of which he has been falsely implicated. The trial court, on the basis of evidence led in the matter, has come to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Thus aggrieved, the State is before us alongwith an application for grant of leave to challenge the judgment of acquittal.
4. We have heard Sri Surendra Singh, learned AGA for the appellant and have perused the material brought on record.
5. In the facts of the present case, we may note at the outset that the date of birth of the victim, as per the scholar register, has been shown to be 7.6.2008. The school records have been produced and duly proved during the course of trial. The trial court has, consequently, come to the finding that the victim on the date of incident was actually minor. This finding of the trial court is based upon the material brought on record during the course of trial and no illegality or perversity in it has been shown.
6. Before proceeding to discuss the evidence led in the matter, we may observe that the informant alleged that there was an attempt to commit rape on the victim but admittedly the victim was not medically examined. Consequently, the medical examination report is not on record, which could have been used as an evidence to corroborate the prosecution case. The prosecution case, therefore, has to be tested on the evidence of witnesses of fact, which have been produced during trial.
7. The trial court has taken note of the statement of the victim, who has supported the prosecution case, as per which the accused with one hand had gagged her mouth and by his other hand had held her. The accused forcibly showed an obscene video to the victim for almost 10-15 minutes during which period the victim could raise no alarm. As against her aforesaid statement in the examination-in-chief, the victim in her cross-examination came up with a different version in which she stated that the incident lasted for almost 30 minutes during which time she did raise an alarm but nobody responded. At the time of incident the victim's parents, brother and aunt were present at home. The place of occurrence is stated to be 15-20 steps from the house of the victim. The trial court has viewed the statement of victim with some suspicion, inasmuch as the victim was at a distance of few paces from her house and in the event she had raised an alarm, as was stated by her in the cross-examination, it was quite unlikely that the family members, at a short distance, would not respond. The victim, moreover, stated that her mother was calling her from a distance of 20-25 steps and that she returned after 10 minutes. She also stated that the father also came upto 20 steps. The victim also stated that she had seen her father. The manner in which incident has been reported by the victim has not been found natural and reliable for the simple reason that at such close distance, any alarm raised by the victim, was likely to attract the attention of the family members. The court has also noticed that there was otherwise contradictory versions of the victim on the aspect of raising of alarm. During the course of trial neither any video has been recovered nor has been exhibited. The trial court has opined that the house of the victim was in Abadi area and the house of other residents situated nearby. In such circumstances, any incident occurred at a distance of 20-25 paces from the house of the victim was otherwise liable to be noticed by the neighbour, but none has admittedly seen the incident nor anyone has reported of it. The trial court has also doubted the version of the victim as her statement was not consistent, inasmuch as the victim in her statement under Section 164 Cr.P.C. had alleged that she was pushed on the ground, whereas such a version is found missing in the statement of the victim during trial. The trial court has also stated that in the event victim was pushed, she could have easily raised an alarm. The trial court has also observed that if the video was being shown for such a long period of time, at such a short distance from the house of the victim, it is quite improbable that any of the family members would not notice it. The manner in which the incident is reported and is otherwise not corroborated by medical evidence or the testimony of independent witness, as such, the trial court has doubted the version of the prosecutrix and the case of the prosecution.
8. Law is settled that the testimony of a victim of sexual assault is entitled to due weightage, but for it to happen, the court must inspire confidence in the testimony of the victim. The manner in which the incident has been reported by the victim has left many gaps in the prosecution version. The conclusion of trial Judge that victim cannot be treated to be a sterling witness is clearly a permissible view in the facts of the present case. There is neither any testimony of independent witness nor any medical evidence exists on record, which may corroborate the version of the victim and her version is found lacking in credibility. The trial court has thus disbelieved the prosecution case. Upon evaluation of evidence so led in the matter the trial court has come to the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and has, accordingly, acquitted the accused.
9. We have been taken through the judgment by the learned AGA, who submits that the trial court has not appreciated the evidence in correct perspective and that the findings returned by the court below are perverse.
10. 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 :- 13.12.2024 Anil