State appealed against acquittal in a POCSO and IPC case involving unnatural offences. High Court examined if the trial court erred by granting benefit of doubt due to hostile victim and inconclusive medical report.
Prayer for grant of leave to appeal was refused; appeal dismissed.
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Neutral Citation No. - 2023:AHC:160787-DB
Court No. - 46
Case :- GOVERNMENT APPEAL No. - 361 of 2023
Appellant :- State of U.P. Respondent :- Vaidya Vikram Dutt Shastri S/O Kaluram Tyagi 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 19.01.2023, passed by the court below in Sessions Case No. 54 of 2015 (State Vs. Vaidya Vikram Dutt Shastri), arising out of Case Crime No. 303 of 2015, under Sections 377, 506 IPC and 5/6 POCSO Act, Police Station Binauli, District Baghpat.
As per the prosecution case the victim was studying in a Gurukul and was residing in the hostel. It is alleged that the victim while studying in class nine was subjected to unnatural offence by his teacher in respect of which a complaint was made by the victim to his father on the basis of which a First Information Report came to be lodged. The investigation ultimately concluded with submission of a charge-sheet under Section 377, 506 IPC and 5/6 POCSO Act.
The accused has denied the charges leveled against him and thereafter the trial proceeded. During the course of trial, the informant has appeared as PW-1 and has supported the prosecution case and in his cross-examination, however, he has not been able to disclose material facts, particularly with regard to the room partner of the victim or even the identity of the principal etc. The class in which the victim was studying is also at variance from what has been disclosed by the victim himself. PW-2 has also supported the prosecution case. As per him, the victim was subjected to unnatural offence. The victim himself has appeared as PW-3 and has not supported the prosecution case. As per the victim, he was scolded by accused for not having completed his classwork, on account of which a quarrel ensued between the victim's father and the accused and on account of advice of friends and villagers the report was lodged against the accused. The victim since has not supported the prosecution case, as such he has been declared hostile. Doctor, who has examined the victim, namely,
PW-6 has proved the medical examination report, as per which there was reddishness on the right side of the anus of the victim and he also complained of pain and and in his opinion this act could have been caused also on account of insect bite etc.
The defence has adduced Vijay Kumar as DW-1, who has stated that the victim was studying in class nine and was scolded by the accused for not completing his work, on account of which a false case has been lodged against him. Defence has also adduced Vishnu Dutt as DW-2 and Vinay Pal as PW-3, who have also stated that the accused has been falsely implicated.
The trial court has analyzed the evidence on record and in view of the fact that victim has himself not supported the prosecution case and the medical opinion was not otherwise conclusive of the commissioning of the offence, granted benefit of doubt to the accused and he has been acquitted.
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 :- 9.8.2023 RA
Digitally signed by :- RAZIQ ALI High Court of Judicature at Allahabad
2 issues framed by the court
Whether the trial court erred in granting acquittal due to lack of victim support and inconclusive medical evidence.
Whether there is perversity in the lower court's order of acquittal warranting State's appeal against it.
2 provisions across 2 enactments
State of U.P.
Vaidya Vikram Dutt Shastri
Ashwani Kumar Mishra
Syed Aftab Husain Rizvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
