Dismissed

Shri Omkar v. State of U.P. and 2 Others

Allahabad HC10 Aug 2023C372/596/2022

Case brief

AI extract

What is this about?

Criminal Appeal under S. 372 Cr.P.C. against acquittal of accused in POCSO/SC/ST case. High Court held evidence was not cogent and dismissed appeal summarily at admission stage.

What the court decided

AI extract

Shri Omkar Vs State of U.P. and 2… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:162081-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 596 of 2022

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Appellant :- Shri Omkar Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Ved Mani Sharma Counsel for Respondent :- G.A.

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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This appeal has been preferred by the informant under section 372 Cr.P.C. against the judgment and order of acquittal, dated 04.01.2022, passed by the Special Judge (POCSO Act, 2012), Court No.3/Additional Sessions Judge, Bareilly in Special Criminal Case No.29 of 2020 (State of U.P. vs. Rashid Ali and another) arising out of Case Crime No.97 of 2016, Police Station Shishgarh, District Bareilly, whereby the accused respondents have been acquitted of the charges under Sections 376D, 506 IPC, 6 of POCSO Act and 3(1)(xii) of SC/ST Act in view of the finding recorded by the court below that the prosecution has been unsuccessful in proving the guilt of accused beyond reasonable doubt.

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It transpires that a written report was made by the informant (PW-1) on 27.05.2016 stating that his daughter aged 14 years was going to village Sahoda for getting medicine and on her way she met the two accused respondents, whom she recognized from before, and who used to visit the village in respect of embroidery work and have enticed his daughter and thereafter took her on motorcycle. The informant's daughter has later sexually assaulted by the two accused, who have also extended threats that in the event victim makes a complaint then she would be done to death. Indecent comments were also made on the caste of victim as she belongs to scheduled caste. The incident occurred at about 10.30 in the morning and the FIR has been lodged on the same day at 04.30 PM as Case Crime No.97 of 2016 under Sections 376D, 506 IPC, 6 of POCSO Act and 3(1)(xii) of SC/ST Act, Police Station Shishganj, District Bareilly.

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Investigation commenced in which statement of witnesses was recorded under section 161 Cr.P.C. The victim was also medically examined wherein her age has been determined as 19 years. The

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statement of victim was also recorded under section 164 Cr.P.C. on 04.06.2016. The accused respondents were arrested on 28.05.2016. The investigation ultimately concluded with filing of charge sheet against the accused respondents on which cognizance was taken on 08.07.2016. The Magistrate committed the case to the court of sessions where charges were framed against the accused respondents and as they denied the charges and demanded trial, the proceedings of trial commenced.

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On behalf of the prosecution, the informant has appeared as PW-1, whereas the victim has appeared as PW-2. Dr. Shashi Katiyar, who has conducted the medical examination of victim at 12.20 AM on 28.05.2016, has been produced as PW-3. PW-4 is the Constable Pankaj Kumar, who has proved the check FIR and G.D. entry. PW-5 is Praveen Kumar, who was a teacher in the institution and has been produced in order to prove the date of birth of victim as 01.01.2000. Investigating Officer has also been produced as PW-6. In addition to oral testimony, documentary evidence has also been produced in the form of written report as Ex.Ka.1; statement of victim u/s 164 Cr.P.C. as Ex.Ka.2; medical report of victim as Ex.Ka.3; supplementary medical report of victim as Ex.Ka.4; first information report as Ex.Ka.4; G.D. as Ex.Ka.6; transfer certificate of victim as Ex.Ka.7; photocopy of scholar register of victim as Ex.Ka.8; site plan as Ex.Ka.9; and charge sheet as Ex.Ka.10. Statement of accused respondents were then recorded under section 313 Cr.P.C. who alleged that they have been falsely implicated in the present case and also stated that they were engaged in the work of embroidery and used to keep goods in the house of informant. Thus, articles have not been returned by the informant and they have been falsely implicated so as to avoid any possible claim of return of articles kept in the house of informant. On behalf of defence, Braham Swaroop has appeared as DW-1; Amar Singh as DW-2; Awadhesh Kumar as DW-3 and Dr. Raj Kumar as DW-4.

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On the basis of evidence led in the matter by the prosecution and after considering the defence version and their evidence the court below has come to the conclusion that the prosecution has failed to establish its case beyond reasonable doubt and has consequently acquitted the accused respondents. Aggrieved by the judgment and order of acquittal the informant/appellant has filed the present appeal.

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The primary ground of challenge to the judgment of acquittal is that the victim is minor and the court below has erred in holding her to be major. It is also urged that the testimony of PW-2 (victim)

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is wholly reliable and the court below has miserably erred in taking a contrary view. Learned counsel further submits that weight of evidence on record clearly establishes the guilt of accused respondents beyond reasonable doubt and, therefore, the judgment of acquittal requires interference in the present appeal.

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We have heard Sri Ved Mani Sharma, learned counsel for the informant/appellant and Mrs. Archana Singh, learned A.G.A. for the State. The lower court records have also been examined by us and the appeal itself is being disposed of at the stage of admission.

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So far as the conclusion drawn by the court below with regard to victim being declared major is concerned, we have perused the records and find that the court below has primarily relied upon the medical report duly proved by the doctor DW-3 as per which the age of victim is 19 years. This finding is challenged on the ground that scholar register clearly shows the victim to be minor. The first informant has disclosed the age of the victim to be 14 years. On behalf of the prosecution, scholar's register and transfer certificate has been produced as per which the date of birth of the victim is 15.03.2000. The school records are attempted to be proved by the testimony of PW-5. It is worth noticing that during the course of investigation the Investigating Officer has also collected the copy of high school mark-sheet of victim as per which her date of birth was recorded as 01.01.2000. The high school mark-sheet, however, has not been proved as none has come forward on behalf of the prosecution to prove the document relating to high school marksheet. The scholar's register and transfer certificate has been exhibited as Ka.7, allegedly records the date of birth of victim on the basis of the application made for admission in the institution. PW-5 in his cross-examination has admitted that though there is a requirement of disclosing date of birth at the time of admission but there is no requirement of mentioning the date of birth in the application for admission. No such application containing the date of birth of the victim has, moreover, been produced during trial by PW-5. The court below has noticed that the original records on the basis of which the date of birth of victim has been mentioned in the school record as 15.03.2000 has not been produced or proved. Since PW-5 has alleged that the recording of date of birth is on the basis of application, but no such application has been produced or proved, therefore, an adverse inference has been drawn against the prosecution and the court below has disbelieved its case of date of birth of victim being 15.03.2000. The victim has otherwise admitted that she has passed high school but the high school marksheet has not been produced by the prosecution. The photocopy of

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high school mark-sheet alone has been collected during investigation by the I.O. but even this document has not been proved. Noticing the fact that records indicate different date of birth and the authentic material in the form of high school marksheet has not been proved, the court below has disbelieved the prosecution case of victim's date of birth being 15.03.2000. Relying upon the medical certificate in which age of victim is mentioned as 19 years the court below has returned a finding that victim is in fact major.

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We have examined the records and in our opinion the view taken by the court below on the aspect of age of victim is a possible view and the law is otherwise settled that if there is a contradiction in the available records relating to date of birth of victim then its benefit must go to the accused. The argument advanced on behalf of the informant/appellant with regard to finding of court below on the aspect of determination of age of victim, therefore, fails.

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We have also examined records, particularly the medical examination report of the victim in which no internal or external injuries have been found on the victim. As per the prosecution, the victim had been taken to a sugarcane field where she was subjected to sexual assault repeatedly by two young men. The fact that no injury or even a scratch is found on the body of victim has thus been construed by the trial court as not supporting or corroborating the allegation made by the victim. The medical report has also been proved by the doctor, who has also opined that in the manner suggested by the prosecution if a young lady is repeatedly subjected to sexual assault there would be some injury discernable on her body.

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So far as the actual incident in which offence is committed is concerned, there are contrary versions brought forth by the prosecution. In the written report made by PW-1, on the basis of disclosure made by PW-2, the victim had been enticed by the two accused who were already known from before to her. However, the victim has come forward to testify that in fact a hanky containing anesthesia was used on account of which she fainted and kidnapped. The third version of victim is that certain clothes were inserted in her mouth on account of which she could not speak.

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The victim apparently has been enticed from an open road which is used by members of village. The victim has otherwise stated that she did not know the two accused from before which fact goes contrary to the disclosure in the written report of

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informant of knowing the two accused from before. Various other contradictions have been noticed by the court below in order to return a finding that the testimony of victim is not reliable.

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Law is settled that where testimony of victim in a case of sexual assault is trustworthy or reliable the conviction can be recorded on its basis alone. However, the court would be required to carefully examine the testimony of victim in order to ascertain its credibility or reliability. In the present case, the court below has carefully examined the testimony of victim before arriving at a conclusion that her testimony is not reliable. Having examined the testimony of victim we do not find any error in the reasoning adopted by the court below in order to disbelieve her testimony.

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In view of the fact that the medical examination of the victim otherwise did not corroborate the prosecution allegation and no independent person has otherwise come forward to support the plea of victim being forcibly taken on a motorcycle, we find no infirmity in the view taken by the court below to hold the victim's testimony not to be reliable. It is also noticed that the victim though alleged that she is going to doctor but even name of such doctor is not disclosed.

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We have also examined the statement of defence witnesses who have clearly come out with specific testimony contradicting the prosecution case. Even the accused in their statement under section 313 Cr.P.C. have stated that there was some monetary dispute between informant and them on account of which they have been falsely implicated. The written report also acknowledges that the victim knew the accused from before.

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Upon overall evaluation of evidence brought on record, we find that the view taken by the court below is a permissible view and in view of the law settled we decline to entertain the present appeal, which is accordingly dismissed summarily, at the stage of admission itself.

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Order Date :- 10.8.2023 Ashok Kr.

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Digitally signed by :- ASHOK KUMAR High Court of Judicature at Allahabad

Shri Omkar v. State of U.P. and 2 Others

Case brief

What is this about?

What the court decided

Shri Omkar v. State of U.P. and 2 Others

Case brief

What is this about?

What the court decided

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