This is a curative appeal by the State challenging an order of acquittal. The High Court observed that the trial court's view was permissible and no perversity was shown. The leave to assail the acquittal was refused, and the appeal was dismissed.
Prayer for grant of leave to assail the judgment of acquittal was refused; appeal dismissed.
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Neutral Citation No. - 2023:AHC:157529-DB
Court No. - 46
Case :- GOVERNMENT APPEAL No. - 360 of 2023
Appellant :- State of U.P. Respondent :- Salim S/O Khalik And 2 Others Counsel for Appellant :- Ashutosh Kumar Sand
Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 24.5.2023, passed by Additional Sessions Judge/Special Judge, POCSO Act, Court No.13, Saharanpur, in Special Sessions Trial No.16 of 2020 (State of U.P. Vs. Salim), connected with Special Sessions Trial Nos.338 of 2020 and 37 of 2020, arising out of Case Crime No.369 of 2019, under Section 363, 366, 368, 376 IPC & Section 3/4 POCSO Act, Police Station Chilkana, District Saharanpur.
As per the informant his sister, aged about 20 years had been kidnapped by unknown persons at about at about 7.30 pm and she has not been traced thereafter. On the basis of such written report a first information report was registered under Section 366 IPC. The investigation proceeded and it was found that the victim was seen with accused in Court on 9.9.2019 and was not seen thereafter. After 25 days the victim was found and was given in custody of the informant. Ultimately a chargesheet came to be submitted against the accused persons under Sections 363, 366, 368, 376 IPC & Section 3/4 POCSO Act. The informant also alleged later that the age of the victim is 16 years as per the school certificate. The concerned Magistrate committed the case to the court of sessions, where the trial commenced.
The informant has appeared as PW-1 and has supported the prosecution case. The victim has appeared as PW-2 and has supported the prosecution case, as per which the accused had forcibly kidnapped her and she was taken to Allahabad from Delhi. The signatures of victim were also obtained on certain blank pages. Medical examination of the victim was also conducted in which no external or internal injuries were found. The victim in her statement before the Medical Officer had disclosed that she was coming out of her house when the accused came from behind; gagged her and took her away. At the stage of medical examination the victim also disclosed her
age of 18 years. In the statement of the victim made before the court, she supported the prosecution case but there are material contradictions found in her testimony at the stage of crossexamination. The trial court has also noticed the contradictions in the statement of victim made at the different stages of the proceedings i.e. at the stage of recording of statement under Section 161 and 164 Cr.P.C. vis-a-vis the statement made in the court and before the doctor. During the course of trial, documents were also produced to show that in fact the victim and the accused had filed a Writ Petition No.22061 of 2019 contending that they have solemnized Nikah and that the family members are harassing. The fact that victim travelled by public transport to Allahabad where she gave the affidavit in support of the writ petition and also the fact that no complaint throughout was made by her has been construed by the court below to be an act of consent on part of the victim to have joined the company of accused. The medical examination also does not support commissioning of any offence. As per the medical report also the age of victim has been determined as 20 years. In the FIR also her age has been shown as 20 years. In the electoral roll also the victim is shown to be major. On the basis of such evidence on record the trial court has come to the conclusion that the victim is major and had joined the company of the accused out of her own willingness. Relying upon the evidence led in the matter, the trial court has consequently come to the conclusion that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and has, accordingly, acquitted the accused.
We have been taken through the judgment by the learned AGA, who submits that the trial court has not appreciated the evidence in correct perspective and that the findings returned by the court below are perverse.
We have carefully examined the judgment of the court below and upon its examination we find that the view taken by the court below is clearly a permissible view, in the facts of the case, and just because a different view could be taken would ordinarily not be a ground for this Court to interfere with the order of acquittal. In such circumstances we find that neither any triable issue is raised before us in this appeal nor any perversity is shown, 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.
Order Date :- 7.8.2023 Anil
Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad
1 issue framed by the court
Whether the appellate court should grant leave to challenge the High Court's order of acquittal in the said case.
State of U.P.
Salim S/O Khalik And 2 Others
Ashwani Kumar Mishra
Syed Aftab Husain Rizvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
