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2024 DIGILAW 636 (UTT)

State Of Uttarakhand v. Jaideep Kumar

2024-10-22

MANOJ KUMAR TIWARI, VIVEK BHARTI SHARMA

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JUDGMENT : (Vivek Bharti Sharma, J.) The State has preferred this appeal under Section 419(3) of Bhartiya Nagarik Suraksha Sanhita, 2023 along with the application seeking leave to appeal against the judgment and order dated 09.07.2024 passed by Sessions Judge/Special Sessions Judge, POCSO Act, 2012, Rudraprayag, whereby the said court has acquitted the respondent of the charges of offence punishable under Sections 363, 366, 376(3) of IPC and Section 4(2) r/w 3(a) of POCSO Act. 2. Heard on Leave to Appeal Application and perused the record. 3. Facts of the case, in brief, are that PW2 lodged a First Information Report (Exhibit P-3) at Revenue Police Chowki Jakholi, District Rudraprayag with the allegations that the respondent has taken and enticed away his minor girl and he is worried that the respondent might have done any immoral act with her. 4. Thereafter, the case was investigated and upon completion of investigation, charge-sheet was filed against the respondent under Sections 363, 366, 376(3) and 4(2) r/w 3(a) of POCSO Act. On submission of charge-sheet, cognizance was taken in the matter and accordingly charges were framed under the aforesaid sections to which the respondent pleaded not guilty and claimed to be tried. 5. To prove its case, prosecution examined ten witnesses, namely, PW1 the prosecutrix, PW2 father of prosecutrix, PW3 mother of prosecutrix, PW4 Ajay Negi, scriber of FIR, PW5 G.S. Jagwan, Principal, PW6 Shoorveer Singh, Principal, PW7, Trilochan Bhatt, PW8 Dr. Himani Dabur, Medical Officer, PW9 Dr. Madhuri Goswami and PW10 S.I. Seema Chauhan, Investigating Officer. The statement of the respondent was also recorded u/s 313 of Cr.P.C. The Trial Court, on perusal of evidence and upon hearing the parties, by the impugned judgment and order dated 09.07.2024, acquitted the respondent, as stated above. Hence, this appeal by the State. 6. Learned State Counsel would submit that the learned Sessions Judge has failed to properly appreciate the facts and evidence and has wrongly passed the judgment of acquittal. He would submit that the acquittal of the respondent is against the trustworthy evidence available on record and is, therefore, liable to be set aside. 7. In view of the submissions made above, this Court perused the impugned judgment and order and other material available on file. 8. He would submit that the acquittal of the respondent is against the trustworthy evidence available on record and is, therefore, liable to be set aside. 7. In view of the submissions made above, this Court perused the impugned judgment and order and other material available on file. 8. After going through the impugned judgment and order, we find that the Trial Court has acquitted the respondent on the ground that the prosecution failed to prove that the prosecutrix was below 16 years of age on the relevant date and time of incident and that she was forcibly taken away by the respondent. 9. In the impugned judgment, the first information report is reproduced which states that when the daughter of the complainant did not return from school then he looked for her at all places and among the relatives and on 04.02.2024 his wife got a call of his daughter/prosecutrix who informed her that she/prosecutrix has married the respondent. Later on, his daughter uploaded her photos with the respondent on Instagram. 10. Learned State Counsel would fairly concede that the prosecutrix when examined as PW1 in the trial court, specifically stated that she was friend with the respondent and later on they both fell in love with each other. 11. He would further concede that the statement of the complainant i.e. father of the prosecutrix was recorded as PW2 and the same is reproduced in the impugned judgment which reveals that PW2 in his examination-in-chief did not mention the date of birth of the prosecutrix and did not even state on oath that the prosecutrix was minor. He only stated that his wife got a call from his daughter that she had married with the respondent. In the statement of mother of the prosecutrix recorded as PW3 she also did not state on oath that the prosecutrix was minor at the time of the alleged incident. 12. However, the learned State Counsel would draw attention of the Court to the statement of PW6 G.S. Jagwan, the Principal of Government Inter College Ramasharam Jakholi and would submit that this witness in his examination-in-chief has stated that the prosecutrix was admitted in school on 13.04.2023 in class IX and at the time of admission the school leaving certificate of Class V and Class VIII was produced in which date of birth of prosecutrix was stated as 05.12.2008. However, the learned State Counsel would fairly concede that the school leaving certificate from the school first attended by the prosecutrix was not produced and proved in the trial court. 13. PW5 Principal Shoorveer Singh Singwal in his examination-in-chief stated that the prosecutrix passed the Class V from the Government Primary School Laludi where he was posted as Principal. However, this witness, as quoted in the impugned judgment at para-40, stated in cross-examination that when a child takes admission in school, parents are asked to submit copy of birth certificate but in the record of the school, birth certificate of the prosecutrix is not available. 14. In view of the foregoing discussion, we are of the considered view that the prosecution has been miserably failed to prove the case against the respondent beyond reasonable doubt. We are in full agreement with the reasoning given by the Trial Court while passing the judgment of acquittal. No interference is, therefore, called for. 15. In such view of the matter, we are not inclined to grant leave to appeal. Leave to appeal application is hereby rejected. Consequently, the government appeal also stands dismissed in limine.