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2017 DIGILAW 1441 (ALL)

STATE OF U. P. v. VIJENDRA @ KALA

2017-05-30

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : Heard learned AGA for the State-appellant and perused the material on record. 1. The instant appeal along with leave to appeal has been moved by the State-appellant against the judgment and order of acquittal dated 15.03.2008 passed by the Additional Sessions Judge, FTC No.17, Bulandshahr in consolidated Session Trial Nos. 172 of 2003, 290 of 2005, 618 of 2003 and 431 of 2005, arising out of Case Crime no.157 of 2002 under Sections 363, 366/34, 504, 506 and 376(2) (Chha) IPC, Police Station Salempur, District Bulandshahr whereby the accused-respondents have been acquitted of charges under Sections 363, 366 read with Section 34, 504, 506 and 376(2) (Chha) IPC. 2. The relevant facts as discernible from the certified copy of the impugned judgment, in brief, are that informant Chandrabhan Sharma son of Rajvir, resident of Village Dhatori, Police Station Salempur, District Bulandshahr on 24.10.2002 but the police authority refused to lodge the report, whereupon a typed report was given to the Circle Officer, City Bulandshahr, on whose intervention, the report of the informant was lodged at Case Crime No.157 of 2002 under Sections 363, 366, 504, 506 IPC, Police Station Salempur, District Bulandshahr on 04.11.2002 wherein it was alleged, inter-alia that the niece of the informant had gone to answer natures call in the morning at 6:30 a.m. on 23.10.2002 in the village Dhatori, Police Station Salempur, District Bulandshahr when the present accused, who were standing over there on the road with white Ambassador car, enticed away her in the car. The incident was witnessed by Hoti Lal and Badri Prasad and others. The informant requested the accused after visiting their home to return his niece but they did not heed to his request instead they were ready to fight. 3. The case was investigated into and after lapse of 7-8 months, the victim was recovered on 13.06.2003, whereupon her statement under Section 164 Cr.P.C. was recorded and on the basis of the statement of the victim, Section 376 IPC was also added in the aforesaid crime number. After the investigation, the charge sheet was filed by the Investigating Officer. 4. Thereafter, the proceeding was committed to the Court of Session then after allotting the numbers to the aforesaid Session Trials, the case was transferred for trial to the aforesaid court of the Additional Sessions Judge, Bulandshahr, who after hearing the accused charged them under aforesaid Sections of IPC. 4. Thereafter, the proceeding was committed to the Court of Session then after allotting the numbers to the aforesaid Session Trials, the case was transferred for trial to the aforesaid court of the Additional Sessions Judge, Bulandshahr, who after hearing the accused charged them under aforesaid Sections of IPC. Charges were denied and the trial was claimed by the accused. 5. The prosecution produced in all eight witnesses including the victim and the informant. Thereafter, evidence for the prosecution was closed and statement of the accused under Section 313 Cr.P.C. was recorded wherein all the accused gave various reasons for false implication in this case. 6. However, it was stated that the prosecutrix is major around 23 years of age and she of her own free will married the accused Vijendra @ Kala and got her marriage registered in the concerned Arya Samaj Temple, Aligarh and marriage certificate was issued, copy whereof was placed on record and statement of the victim was also recorded before the Magistrate concerned wherein she affirmed the fact of her marriage with accused Vijendra @ Kala. The victim had also preferred a writ petition before this Court seeking quashment of the first information report and stay of arrest of the accused Vijendra @ Kala. Besides, the certified copies of love letters purportedly written by the victim to the accused Vijendra @ Kala were placed on record, the defence also produced Dharmpal Singh DW-1 and Indrapal Singh DW-2. Relevant papers were filed vide list 63-B, 53-B, 60-B and a number of other papers which have been described in the body of the impugned judgment of the trial court need not be repeated for the sake of convenience. 7. The trial court after hearing respective submissions of both sides and considering merits of the case found the prosecution story highly improbable as it did not inspire confidence, acquitted the accused in above session trials under aforesaid charges. Hence this appeal. 8. The moot point involved for consideration in this appeal is as to whether the trial court was not justified in recording the finding of acquittal against the accused-respondents in the aforesaid offences relating to the aforesaid session trials? 9. Hence this appeal. 8. The moot point involved for consideration in this appeal is as to whether the trial court was not justified in recording the finding of acquittal against the accused-respondents in the aforesaid offences relating to the aforesaid session trials? 9. Learned AGA has assailed the findings of acquittal basically on the ground that the trial court was not justified in arriving at conclusion that testimony of the prosecution witnesses is contradictory in material part but contradictions are of trivial nature. The prosecution witnesses have reasonably proved the case. The finding of acquittal so recorded by the trial court is obviously against the material existing on record which is in violation of the settled principle of criminal jurisprudence and against the law laid down by Hon'ble Apex Court. The trial court was not justified in not believing the version of the prosecution witnesses. 10. We have considered comprehensively vital point regarding abduction/kidnapping of the victim on 23.10.2002 around 6:30 a.m. which, in fact, occurred by instrumentality of the accused and later on she was raped by the accused and she was kept captive in lonely room secluded by the public. 11. The records profusely indicate that the victim was aged 23 years, she had love affairs with accused Vijendra @ Kala, she got married with him in Arya Samaj Temple, Aligarh and obtained a marriage certificate and gave statement to the concerned Magistrate and also preferred a writ petition before this Court wherein the order of stay of arrest was passed in favour of the accused Vijendra @ Kala. Then to say that the victim was 16 years of age on the day of the occurrence is absolutely false on the other hand the defence has produced relevant papers and testimony of the teacher and principal whereby it is proved that the date of birth of the victim recorded in the High School Mark-Sheet is 15.04.1984 and the incident admittedly took place on 23.10.2002 which signifies the fact that the victim had attained 18 years of age on the day of the occurrence. 12. The learned trial Judge has taken just and consistent view of the material on record and has scrutinized the same in right perspective and it cannot be said that the finding of acquittal is not based on material on record. 12. The learned trial Judge has taken just and consistent view of the material on record and has scrutinized the same in right perspective and it cannot be said that the finding of acquittal is not based on material on record. It is cardinal jurisprudence of law that in case where finding of acquittal is found to be based on material on record and in the eventuality of possibility of two views, the view which favours the accused is to be preferred then the higher Court or the appellate Court would not disturb the finding of acquittal. 13. Presumption of innocence runs in favour of the accused right from stage of commencement of trial and the same continues upto Appellate stage. In case finding of acquittal is recorded by the trial court and acquittal is found to be based on material on record then presumption of innocence is fortified and strengthened in favour of the accused as has been held by Hon'ble Apex Court in Kanhaiya Lal & Ors. v. State of Rajasthan; AIR 2013 SC 1940 . 14. Even in cases where two views regarding the same incident are possible then the view adhered to and adopted by the trial court will not be disturbed if material on record justifies the finding so recorded as has been held by Hon'ble Apex Court in Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad; 2013 (4) Supreme 450 . 15. Thus, leave to appeal is refused. 16. Consequently, the instant appeal is dismissed. Let a copy of this order be certified to the trial court concerned.