Allahabad High Court
State Of U.P. vs Nanhe Chandra Urf Sunil Kumar S/O Late ... on 28 August, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:172581-DB Court No. - 46 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 397 of 2023 Appellant :- State of U.P. Respondent :- Nanhe Chandra Urf Sunil Kumar S/O Late Pancham Lal 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 16.02.2023, passed by the court below in Session Case no.145 of 2018 (State of U.P. Vs. Nanhe Chandra alias Sunil Kumar), arising out of Case Crime No. 226 of 2017, under Sections 376, 452, 506 IPC, Police Station Pipari, District-Kaushambi.
As per the prosecution case, the victim was at her home on 17.06.2017 when the accused at about 11' O clock in the night entered her house and attempted to sexually assault her. On raising of alarm, the family members woke up and the accused threatened the victim with consequential steps. The victim complained of pain in body parts and, immediately, the police was informed on helpline number 100. The report in respect of such incident was lodged one month and two days later on 19.07.2017 at 10:35 a.m. The victim was medically examined in which no external or internal injuries were found. The victim herself has appeared as P.W.-1 during the course of trial and has disclosed her age as 35 years and she was having five children. The husband of the victim had deserted her 6-7 years back. The victim has alleged that the accused entered the house and pressed her chest and also attempted to sexually assault her. The victim has also proved the written report lodged in this case. She has also verified her statement made under Section 164 Cr.P.C. P.W.-2 is a neighbour who has also supported the prosecution case, as per which, the victim woke him up at about 1-2' O clock in the night and informed him about the sexual assault. The witness took the victim to the police station and drop her there. Apart from the formal witnesses, P.W.-5 has been produced who is the doctor and has conducted the medical examination of the victim on 31.07.2017. No material in the medical report has surfaced on record which may support the prosecution case.
The accused in his statement under Section 313 Cr.P.C. has stated that he has been falsely implicated on account of enmity and there is no substance in the report. It has been alleged on behalf of the accused that he has enmity with one Ram Karan and in collusion with him the victim has falsely implicated him. It has also been alleged that though the incident occurred on 17.06.2017 but the F.I.R. has been lodged after more than a month on 19.07.2017. There are cuttings in the case diary. It has also been alleged that previously also an application under Section 156(3) had been lodged by the victim against the accused but the same was not pressed. According to the defence, there was a dispute between the victim and the wife of the accused and the police had to intervene and only thereafter that the accused has been falsely implicated.
The trial Court has examined the evidence on record and has found the prosecution case not to be convincing inasmuch as the incident occurred on 17.06.2017 whereas the F.I.R. has been lodged after a month. P.W.-2 had stated that he had taken the victim to the police station on the same night and, therefore, it is difficult to understand as to why the F.I.R. was not lodged on that day and was lodged after a month. Incidentally, P.W.-2 who happens to be the son of the Ram Karan with whom the accused admittedly had enmity. It has also surfaced on record that in respect of the dispute of wife of the accused with the victim, proceedings were initiated under Section 107/116 Cr.P.C., on account of an alleged incident, which occurred during the feast organized by one Neeraj Kumar of the village. This incident apparently occurred at 10' O clock in the night on 17.06.2017, whereas, the victim alleges that she was sexually assaulted at 11' O clock in the same night. The manner in which victim has suppressed the previous incident of 10 P.M. and has come out with entirely different version, much later with active support of the Ram Karan has generated sufficient doubt for the Court below to grant benefit of doubt to the accused and thereby acquit him. It has also come in evidence that a complaint had been lodged against the brother of the victim under Section 376 I.P.C.
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.
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 :- 28.8.2023 SP/-