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2024 DIGILAW 2298 (ALL)

State of U. P. v. Geetam

2024-11-08

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

body2024
JUDGMENT : By the Court.-This appeal is by the State alongwith an application for grant of leave to challenge the judgment of acquittal dated 25.7.2024 passed by the learned Special Judge (POCSO Act)/Additional Sessions Judge, Budaun, in Special Session Trial No. 207 of 2017 (State v. Geetam), Special Session Trial No. 988 of 2017 (State v. Manakchand) and Special Session Trial No. 662 of 2018 (State v. Raghuraj), arising out of Case Crime No. 445 of 2016, under Sections 363, 366, 376-D I.P.C. and Section 5/6 of Protection of Children From Sexual Offences Act, Police Station Jarifnagar, District Budaun. 2. The informant in the present case is the father of the 13 year old victim, who has lodged a report on 25.9.2016, stating that on the previous day, i.e., 24.9.2016 at about 04:00 p.m., the victim had gone to cut fodder for the cattle in the field, but when she did not return he became suspicious and came to know that Jugendra, Raghuraj, Manakchand and Geetam, on the threat of illegal fire-arms, have abducted his daughter. The F.I.R. consequently came to be registered under Sections 363, 366 I.P.C., and on conclusion of investigation the charge-sheet was submitted under Sections 363, 366, 376-D I.P.C. and Section 5/6 of Protection of Children From Sexual Offences Act. The accused persons denied the allegations levelled against them and demanded trial. 3. During the course of trial, Dr. Rashmi Deep, who had medically examined the victim, has been produced as P.W.2, whereas, Constable Pushpendra Kumar has been produced as P.W.1. The informant has appeared as P.W.3, while the victim has appeared as P.W.4. Other prosecution witnesses are police personnel, who are formal witnesses. The medical report as well as other documents including the statement of the victim under Section 164 Cr.P.C. has been produced by the prosecution and have been duly exhibited before the Court below. 4. The trial Court, on the basis of evidence led in the matter, has come to conclusion that the prosecution has failed to establish its case beyond reasonable doubt. 5. We have heard Shri Surendra Singh, learned A.G.A. for the State. 6. Learned A.G.A. for the State submits that the prosecution has established its case beyond reasonable doubt and the contrary view taken by the Court below is in the teeth of evidence on record. 7. We have perused the judgment of the Court below. 5. We have heard Shri Surendra Singh, learned A.G.A. for the State. 6. Learned A.G.A. for the State submits that the prosecution has established its case beyond reasonable doubt and the contrary view taken by the Court below is in the teeth of evidence on record. 7. We have perused the judgment of the Court below. It transpires that having examined the evidence on record the Court below has formulated four questions for determination in the present case. 8. The first issue is with regard to delay of 26 hours in lodging of the F.I.R. It has rightly been found to be of not much consequence, in as much as the family members usually try to search the victim on their own, and even otherwise, there is general reluctance in reporting instances of sexual offence on account of adverse impact on the reputation of the family members and the victim. On the aspect of minority of the victim the prosecution has alleged her to be 13 years old. The radiological report is on the record, wherein also the doctor has assessed the victim to be 13 years of age. The finding returned by the trial Court that the victim is minor, is, therefore, clearly borne out. 9. It is on the remaining two issues with regard to the commissioning of the offence on the specified date, time and place of occurrence, by the accused persons, that the trial Court has disbelieved the prosecution case. The evidence led during trial in the present matter has been referred to by the trial Court and the same has been perused by us. The evidence clearly shows that there are no independent witness of the incident and the two persons, who allegedly had seen the incident, as per the informant, have been produced as defence witnesses, i.e., D.W.1-Bhurey and D.W.2-Omendra Singh, both of whom have not supported the prosecution case and have stated that there is enmity between the parties, on account of which a false case has been set up. We have also perused the statement of P.W.2, who is the doctor. She had examined the victim on 27.9.2016, which is clearly 72 hours after the incident. In her statement the doctor has found absolutely no external or internal injuries on the victim. Victim's hymen was found old, torn and healed with margins. We have also perused the statement of P.W.2, who is the doctor. She had examined the victim on 27.9.2016, which is clearly 72 hours after the incident. In her statement the doctor has found absolutely no external or internal injuries on the victim. Victim's hymen was found old, torn and healed with margins. On the vaginal slides prepared of the victim no dead or alive spermatozoa or semen, etc., was found. The medical report does not, therefore, support the commissioning of offence of gang rape upon the minor victim. 10. This takes us to the solitary evidence on record, which is the statement of the victim herself. 11. Law is settled that in matters of sexual offences the statement of victim has to be treated at par with the statement of an injured witness and the same is entitled to quite weight. It is also settled that on the solitary basis of the statement of the victim also a conviction can be accorded by the trial Court provided the victim is found to be sterling witness. In order to accord the status of sterling witness it has to be seen as to whether she has been consistent and her version otherwise appears to be credible and consistent. On this touchstone the evidence has been examined by the trial Court. The victim has not been found consistent and consequently she has not been treated as a sterling witness. Reasons in that regard has been noticed by the trial Court. First and foremost, the Court below has found that in her statement under Section 161 Cr.P.C. the victim has alleged rape by three persons, whereas, in her statement under Section 164 Cr.P.C. the victim has alleged rape by two persons. However in her statement before the Court the victim has implicated four persons who committed rape on her. The victim, therefore, has not been consistent in implicating the accused persons and at different stages separate set of persons are alleged to have committed rape on the victim. This aspect has been confronted to the victim and no satisfactory explanation in that regard has been brought on record. The trial Court has also noticed that the statement of the victim with regard to time and place of incident has not been consistent nor the manner of commissioning of the offence, disclosed by the victim, is wholly found reliable. This aspect has been confronted to the victim and no satisfactory explanation in that regard has been brought on record. The trial Court has also noticed that the statement of the victim with regard to time and place of incident has not been consistent nor the manner of commissioning of the offence, disclosed by the victim, is wholly found reliable. The trial Court having noticed material contradictions in the version of the victim, as also the fact that prior enmity is suggested by the defence, has come to the conclusion that the prosecution has not succeeded in establishing its case beyond reasonable doubt. The victim at the stage of trial was found married and settled in life. 12. Though learned A.G.A. has impeached the judgment on various grounds, but upon valuation of evidence on record, we find that the view taken by the trial Court on the basis of analysis of evidence in the present case is a permissible view. 13. Law is otherwise settled that ordinarily a judgment of acquittal will not be interfered with, unless perversity or illegality is shown. The scope of interference by High Court in matters of acquittal by trial Court has been considered by the Apex Court in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 SCC OnLine SC 561. Para 39 and 40 of the judgment are relevant for the present purposes and are reproduced hereinafter : ''39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles : (a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.'' 14. 40. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.'' 14. Upon evaluation of evidence so led in the matter, we find no perversity in the judgment so as to interfere with the findings returned by the Court concerned, inasmuch as the conclusions drawn by the Judge concerned are clearly permissible in view of the evidence placed on record. No misreading or omission of evidence is pointed out, either. It cannot be said that only the view consistent with the guilt of accused is possible from the evidence on record. We find that neither any triable issue is raised before us in this appeal nor any perversity is shown in the judgment of acquittal, 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.