Allahabad High Court
State Of U.P. Thru. Prin. Secy. Home, ... vs Sonu Singh And Others on 3 January, 2023
Bench: Devendra Kumar Upadhyaya, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- APPLICATION U/S 378 No. - 181 of 2022 Applicant :- State Of U.P. Thru. Prin. Secy. Home, Lko. Opposite Party :- Sonu Singh And Others Counsel for Applicant :- G.A. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Narendra Kumar Johari,J.
Heard.
The present Criminal Misc. Application under Section 378 (3) Cr.P.C. has been filed by the State seeking leave to appeal against judgment and order dated September 7, 2022 passed by Additional Sessions Judge/Special Judge (POCSO Act), Court No.12 Sultanpur in Special Session Trial No.359 of 2020 (State vs. Sonu Singh & others) arising out of Case Crime No.900 of 2019, under Sections 366, 368, 376, 506 I.P.C. & 3/4 POCSO Act, Police Station Kotwali Nagar District Sultanpur, by which learned trial court had acquitted the accused persons from the charges levelled against them.
In brief the prosecution case is that the daughter of informant was student of class 10th. Her relative Sonu Singh called to her daughter at his home on pretext of marriage and provided her daughter a dream of happy and joyful matrimonial life. When her daughter went at the resident of accused Sonu Singh on 19.04.2019, he raped her when her daughter protested, accused assured that she is his wife and will remain in future at same status. Again on 31.05.2019, 26.06.2019 and 18.08.2019, accused Sonu Singh called her daughter at the room of Alok Singh and established physical relation, when the daughter of informant requested the accused to solemnize marriage, he refused and arranged to send her at Sultanpur with his brother Monu Singh. The accused had also given a written application to informant's daughter with direction to lodge an F.I.R. against her own father on the ground that her father has committed rape with her, but she did not follow the instructions of accused, rather she informed the informant regarding the activities of accused Sonu Singh. Monu Singh has also accompanied the accused Sonu Singh in his ill activity.
On the basis of written application (Tehrir) of above contention, an F.I.R. was lodged against accused persons Sonu Singh, Monu Singh and Alok Singh under Sections 366, 376 & 506 I.P.C. and 3/4 POCSO Act vide Crime No.900 of 2019 at Police Station Kotwali Nagar, District Sultanpur.
After registration of F.I.R., Police started the investigation of offence. The Investigating Officer, after completing the investigation submitted charge-sheet against accused Sonu Singh under Sections 366, 376 & 506 I.P.C. and 3/4 POCSO Act and against other accused Monu singh and Moni Singh submitted chargesheet under Section 368 I.P.C. and 3/4 POCSO Act. Accordingly, the charges were framed against the accused person in corresponding section of I.P.C. Accused persons denied the charges, pleaded not guilty and preferred trial.
On behalf of prosecution, as a witnesses of fact victim was produced as PW-1 and informant as PW-2.
Learned trial court after considering the evidence of prosecution and material available on record considered the case on merit and acquitted accused persons from the offences charged against them. Against the said judgement, the criminal appeal along with application for leave to appeal has been filed by the State.
Learned A.G.A. pressing the application under Section 378(3) of Cr.P.C. has submitted that trial court has wrongly acquitted the accused persons from the charges of offence. Learned trial court did not consider the settled principle of law and could not appreciate the prosecution evidence properly. The victim has supported the prosecution case in her examination-in-chief which was sufficient to convict the accused person in the alleged offence. In over all, the judgement of trial court is bad in the eye of law and is liable to be set-aside. Accordingly, the application under Section 378(3) Cr.P.C. deserves to be allowed.
We have heard the counsel for the parties and perused the record.
From perusal of record, it transpires that in her examination-in-chief, witness PW-1 has stated that she was in intimate relation with accused Sonu Singh and she herself had gone to meet Sonu Singh on 19.04.2019 at Payagipur on his call. On 31.05.2019 and 26.06.2019, victim had gone to meet Sonu Singh with her own free will and accord where Sonu Singh established physical relation with her. She has not made any allegation against other co-accused person. Subsequently, she has stated that Sonu Singh has not committed forcible rape with her. The court on the request of the prosecution has declared the PW-1 as hostile. In her cross examination, she has stated that in her examination-in-chief she has wrongly stated that Sonu Singh has established a forcible physical relation with her. She further stated that at the time of occurrence her age was more than 18 years. She got married with accused-Sonu Singh by her own free will and accord and at present she is residing with him (accused).
Witness PW-2 also did not support the prosecution case in her evidence and stated that at the time of occurrence, age of her daughter was approximately 18 years. It is wrong to say that accused Sonu Singh has enticed away her daughter and established physical relation forcefully. Co-accused persons Monu Singh and Moni Singh had not provided any help to the accused Sonu Singh in any of his activity. The accused has never extended her the threat of life. She has also denied the contents of F.I.R.
Learned trial court also concluded that in ossification test, the radiological age of victim was found as approximately 16 years but the development of bone in human body depends from in so many factors and circumstances. The victim and her mother witness PW-2 themselves have stated in evidence that at the time of occurrence age of victim was more than 18 years . Apart from the others, at the time of occurrence, victim had attended the age of discretion and she was sufficiently mature to take decision for her future.
In the above scenario, the ingredients of offnce as mentioned in the F.I.R., are not found proved, therefore in absence of cogent evidence the trial court has rightly held that the prosecution could not prove its case beyond reasonable doubt against accused persons, resultantly learned trial court acquitted all the accused persons from the charges levelled against them.
So far as acquittal of the accused persons are concerned on the basis of fact, evidence and circumstances of the case, the finding of learned trial court is just and proper. No perversity is found in the judgment. The view taken by the learned trial court is possible.
Undoubtedly in such a matter, while deciding the application for leave to appeal at this stage, an appellate court has full power to review and reconsider the evidence upon which the order of acquittal is founded. As a general principle, there is double presumption in favour of the accused. First one is that the presumption of innocence which is available to accused person under the fundamental principle of criminal jurisprudence and the second is that the accused having secured his acquittal, the presumption of his innocence is further reaffirmed by the trial court. It is also to be bear in mind that if two reasonable conclusions are possible on the basis of evidence on record, the appellant court should not disturb the finding of acquittal recorded by the trial court.
In view of the above, we have gathered the conclusion that the judgement of learned trial court is well discussed and has been founded on material evidence available on record. The conclusion arrived by the trial court is based upon proper reasoning too.
Keeping in view the aforesaid failure of the prosecution to prove the guilt of accused, as noted by learned trial court, we are of the considered view that judgment of the trial court cannot be said to be illegal, illogical and improbable. We find no hope of success in this appeal and accordingly, no interference is called for.
Hence, the prayer for grant of leave to appeal is hereby refused. The application is dismissed accordingly. Consequently, the memorandum of appeal does not survive and stands dismissed.
(Narendra Kumar Johari,J.) (Devendra Kumar Upadhyaya,J.) Order Date :- 3.1.2023 Reena/-