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2018 DIGILAW 2316 (ALL)

State of U. P. v. Kuldip Alias Kamlesh

2018-11-13

HARSH KUMAR

body2018
JUDGMENT : Harsh Kumar, J. 1. Heard learned A.G.A. for the State and perused the record. 2. The application has been moved for leave to file appeal against the impugned judgment and order dated 27.7.2018 passed by Additional Sessions Judge, Court No.1/Special Judge, POCSO Act, Hamirpur in Special Case Trial No.34 of 2016 (State Vs. Kuldip @ Kamlesh), by which the learned Judge has acquitted the accused-respondent Kuldip @ Kamlesh for the charges of offence under Sections 354(A), 506 I.P.C. and Section 8 of POCSO Act. 3. Learned A.G.A. submitted that it is proved from the evidence on record that the respondent-accused offered a mobile phone to 13 years old prosecutrix on 6.2.2016 at about 12 in noon when she was all alone at home and upon her denial he thrown away the mobile inside her house and since then outrages her modesty and also threatens of life and commits obscene acts; that the prosecutrix in her statement on oath has stated that after the incident the accused-respondent made a call on the mobile phone (thrown by him) wherein he demanded a sum of Rs.1,000/-from her and that some medicines were also thrown by him along with the mobile phone, and when she was going to school accused-respondent caught her from behind and told her to give the medicines provided by him to all the family members and then to approach him; that learned trial court has acted wrongly and illegally rather perversely in holding that throwing of the mobile phone or medicines as alleged, does not bring the action of accused-respondent within the definition of an offence under Section 354 or 354A I.P.C. or under Section 7/8 POCSO Act; that learned trial court has acted wrongly and perversely in acquitting the accused-respondent from the offences under Sections 354A, 506 I.P.C. and Section 8 of POCSO Act; that in the circumstances the leave to appeal may be granted. 4. Upon hearing learned A.G.A. and perusal of record, I find that in the F.I.R. there is no whisper of throwing any medicines with the mobile phone and the learned trial court in detailed analysis of evidence on record has found various contradictions in the statement of prosecutrix and has found her statement to be self-contradictory. 4. Upon hearing learned A.G.A. and perusal of record, I find that in the F.I.R. there is no whisper of throwing any medicines with the mobile phone and the learned trial court in detailed analysis of evidence on record has found various contradictions in the statement of prosecutrix and has found her statement to be self-contradictory. The accused has stated that he has been falsely implicated due to election rivalry as his father was village Pradhan and the alleged act of accused-respondent in throwing away the mobile in the house of prosecutrix does not amount to an offence under Section 354A I.P.C. as has been rightly negated by the trial court. 5. For ready reference the provisions of Sections 354, 354A I.P.C. and Sections 7 & 8 of POCSO Act are being reproduced hereunder:- Provision of Sections 354, 354A I.P.C.- "354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 354 A. Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts- (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. Provision of Sections 7 & 8 of POCSO Act 7. Sexual assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Punishment for sexual assault .-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine." 6. 8. Punishment for sexual assault .-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine." 6. In view of the definitions of offence under Sections 354 & 354A I.P.C. and Sections 7/8 of POCSO Act, I find that mere throwing of mobile or medicines or providing the same with or without medicines may not be considered to be an offence under Section 354 or 354A I.P.C. or under Section 7/8 POCSO Act. The prosecution has failed to allege or prove any specific act of respondent which may bring his action in category of an offence under Sections 354, 354A and 506 I.P.C. or Section 7/8 POCSO Act. The learned trial court has made no mistake in finding that the prosecution has utterly failed to prove the ingredients of offence under Section 354 or 354A I.P.C. or Section 7/8 POCSO Act or Section 506 I.P.C. 7. In view of the above material contradictions, I find that the reasoning given by the learned trial court is cogent and there is no manifest error of fact on law or any perversity, which may require interference by this Court. It is not the case of applicant that the learned trial court failed to consider any evidence, which was there on record. 8. Perusal of record shows that the impugned judgment rendered by the trial court is absolutely flawless since he has analyzed the evidence in great detail and appreciated them in correct perspective. The trial court has ascribed cogent reasons for not placing reliance on the untruthful testimony of complainant and her witnesses. In such a fact situation, High Court is not advised under law to interfere with the judgment of acquittal. 9. It is settled principle of law as held by Hon'ble the Supreme court in the case of K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified". 10. P.K. Surenderan, (2008) 1 SCC 258 "When two views are possible, appellate Court should not reverse the Judgment of acquittal merely because the other view was possible. When Judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappropriation of evidence on record, reversal thereof by High Court was not justified". 10. In view of discussions made above, I have come to the conclusion that the learned AGA has failed to show any legal infirmity, incorrectness or perversity in the impugned order of acquittal and there is no sufficient ground for interfering with or setting it aside the impugned order of acquittal and substituting it with conviction order and no sufficient ground to grant leave to file appeal. 11. The application u/s 378 (3) Cr.P.C. has no force and is liable to be dismissed. 12. The application u/s 378 (3) Cr.P.C. for leave to file appeal is dismissed accordingly and the appeal also stands dismissed. 13. Lower court record be sent back to court concerned along with a copy of this order. Dismissed. For order, see order of date passed on application for leave to file appeal.