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2024 DIGILAW 1019 (ALL)

Kajal v. State of U. P.

2024-04-09

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : This appeal has been filed by the victim (X) challenging the judgment and order dated 24.2.2023, passed by Special Judge (POCSO Act), Court No. 3/Additional Sessions Judge Bareilly, in Sessions Trial No. 46 of 2020 (State v. Sanjay and others), arising out of Case Crime No. 432 of 2017, under Sections 376-D, 506 IPC & Section 6 POCSO Act, Police Station Subhash Nagar, District Bareilly, whereby accused persons have been acquitted of the offence by granting them benefit of doubt. A finding has been returned that prosecution has not been able to successfully prove the incident, which led to the implication of accused persons. 2. This appeal was initially entertained and lower Court records were summoned, so that the appeal may be considered for admission. The records have been received and have been perused by us. 3. The prosecutrix has alleged in her written report that on 10.9.2017 at about 7.00 pm she had gone to Nekpur Sugar Mill to get Chowmein. A scooty arrived with the minor accused alongwith accused Jittu @ Jitendra, who are resident of the same locality and administered some substance, on account of which she became unconscious and victim was taken to a village where she was kept in a room. When the victim became conscious, she found herself in a room, where she was subjected to sexual assault by Sanjay Sonkar son of Netrapal, Boby, Nandram and Sanjay son of Makhan Lal etc. The victim thereafter was left at her house at about 11.00 in the night and she was also extended threats. The victim has claimed herself to be 17 years of age. It is thereafter that on 18.9.2017 a report was lodged with local police pursuant to which Case Crime No. 432 of 2017 came to be registered with above-noted allegations. 4. The investigation ultimately concluded with submission of a charge-sheet. Thereafter the case was committed to the Court of sessions. Charges were framed against the accused persons who denied the accusations made against them and demanded trial. It is thereafter that the trial proceeded and has ultimately resulted in acquittal of the accused persons. 5. First and foremost, the Court of sessions has taken up the issue as to whether the victim at the time of incident was minor or major. Evidence in that regard has been noticed in para 31 to 34 of the judgment. It is thereafter that the trial proceeded and has ultimately resulted in acquittal of the accused persons. 5. First and foremost, the Court of sessions has taken up the issue as to whether the victim at the time of incident was minor or major. Evidence in that regard has been noticed in para 31 to 34 of the judgment. The prosecution has placed reliance upon the transfer certificate issued to the victim of Class-VI, on the basis of which the victim got admitted to Class-VII in a different educational institution on 24.8.2012. The scholar register has been produced of the later institution and the Officiating Principal of the institution has been examined. The Officiating Principal has admitted that at the time of admission of the victim and till she left the institution, the witness was not posted in the institution. The transfer certificate was not verified. Trial Court has taken note of the provision of Section 94 of the Juvenile Justice Act and it has been observed that there is neither any material to show the age of the victim at the time of her admission to Class-I, nor the extract of the birth register as per the municipal record etc. has been produced. Parents of the victim have also not been examined in respect of the age of the victim. 6. Upon evaluation of the evidence placed on record, the trial Court has held that prosecution has not been able to prove the date of birth of the victim on the basis of materials placed on record. The victim was medically examined and in her ossification test report her age has been found to be 19 years. The trial Court has thus concluded that the prosecution has not been able to prove the victim to be a minor, and that the evidence on record proves that she was major on the date of incident. Although learned counsel for the appellant has placed various submissions but no illegality or perversity has been pointed out in the application of appropriate law on the subject by the trial Court. We, therefore, find no illegality in the finding returned by the trial Court that the victim was major on the date of incident. 7. Although learned counsel for the appellant has placed various submissions but no illegality or perversity has been pointed out in the application of appropriate law on the subject by the trial Court. We, therefore, find no illegality in the finding returned by the trial Court that the victim was major on the date of incident. 7. On the aspect of commissioning of gang rape the trial Court has taken note of the statement of doctor, who had examined the victim and found no traces of any external or internal injury on the victim. The hymen of the victim was found old torn and healed. The trial Court has doubted the prosecution case of gang rape upon the victim by accused persons on the ground that absolutely no injury of any kind has been found on the person of the victim. 8. The trial Court has also disbelieved the prosecution case on account of material contradictions in the statement of victim herself. The victim in her statement under Section 161 Cr.P.C. specifically implicated 9 persons, who allegedly had subjected her to sexual assault. The figure of assailants at the stage of her statement under Section 164 Cr.P.C. was reduced to 6 persons. At the time of medical examination of the victim, she disclosed the doctor that number of assailants was 10. During the course of trial, the figure of assailants has been reduced to 8. This material contradiction in the number of assailants has been relied upon by the trial Court to doubt the prosecution case, particularly when the medical examination of the victim showed absolutely no external or internal injury. Apart from the testimony of the victim, no independent corroboration has come on record. Although it is settled that if the victim appears to be credible then her statement alone can form the basis of conviction in a case of sexual offence, but for it to be accepted the victim must be shown to be trustworthy. The apparent consideration in her testimony coupled with the fact that medical report does not support the allegation of gang rape and no independent witness has come forward to support the victim shall surely dent the prosecution case. 9. Learned counsel for the appellant has submitted that medical examination was conducted nearly 10 days after the incident, and therefore, injuries may not have been noticed. 9. Learned counsel for the appellant has submitted that medical examination was conducted nearly 10 days after the incident, and therefore, injuries may not have been noticed. This plea of the appellant cannot be accepted, when the version of the victim is otherwise doubted by the trial Court for valid consideration. The reason for delayed holding of medical examination also needs to be noticed. The incident allegedly occurred on 10.9.2017, whereas the medical examination was conducted on 19.9.2017, only because the written report itself was given to the police on 18.9.2017. The delay in holding of medical examination, therefore, was not on account of any mistake on part of the accused or the Investigating Agency. 10. The only material, which has been relied upon by the appellant is the bloodstained Capri worn by the victim. It is asserted that same Capri was worn by the victim at the time when it was recovered by the police and sent for scientific examination before the FSL. Though we find that FSL report shows existence of human blood but the circumstance of the victim wearing the same cloth even 10 days after the incident raises some doubt. The assertion that bloodstains survived even after the Capri was washed cannot be held convincing. In fact, the victim has admitted that her Capri was washed. This evidence in itself would not explain the contradictions noticed by the Court of sessions in the case of the victim. After the cloth itself was washed, we do not understand as to how the bloodstains would still remain on the Capri even after 10 days of the incident. Enmity between the families is otherwise admitted on record, which can be the cause for committing the offence but can also be the reason for false implication. 11. Learned Court below has also noticed that though the victim was taken from a public place in the presence of several persons at 7.00 in the evening, allegedly by the accused persons on a two-wheeler but no independent person saw the incident nor anyone came forward to save the prosecutrix also seems doubtful. The trial Court on the basis of material placed on record has, therefore, found that the prosecution case is not convincing and a finding has been returned that prosecution has failed to prove its case beyond reasonable doubt. 12. The trial Court on the basis of material placed on record has, therefore, found that the prosecution case is not convincing and a finding has been returned that prosecution has failed to prove its case beyond reasonable doubt. 12. Though the original records have been produced before the Court and the appeal has been heard at some length, but we find that there is neither any apparent perversity nor any misconstruction of oral or documentary evidence on record, which may vitiate the findings returned in the judgment of the Court below. Law is otherwise settled that just because a different view could be taken in the matter would hardly be a ground to interfere with the judgment of acquittal. On the analysis of evidence on record, we find that the view taken by the Court below is clearly a permissible view, and there is no sufficient ground to interfere in the present appeal against the judgment of acquittal. 13. Consequently, this appeal is summarily rejected under Section 384 of the Code of Criminal Procedure.