Dismissed

State of Up v. Biresh s/o Randhir

Allahabad HC27 Sept 2023GOVA/409/2023

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against acquittal. The court held that the prosecution failed to prove the victim was a minor, relying instead on medical opinion, and thus the acquittal was sustainable.

What did the court decide?

Appeal dismissed; leave to appeal refused; judgment of acquittal affirmed.

What the court decided

State of Up Vs Biresh s/o Randhir — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:187318-DB

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Court No. - 46

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Case :- GOVERNMENT APPEAL No. - 409 of 2023

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Appellant :- State of U.P. Respondent :- Biresh S/O Randhir Counsel for Appellant :- Ashutosh Kumar Sand

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

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This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 26.6.2023, passed by 2nd Additional Sessions Judge (Trying Rape Cases) (POCSO Act), Etawah, in Special Case No.56 of 2019 (State Vs. Biresh), arising out of Case Crime No.133 of 2018, under Section 363, 366, 376(1) IPC & Section 3/4 POCSO Act, Police Station Vaidpura, District Etawah.

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As per the prosecution case the fifteen year old victim was enticed by the accused at 7.00 in the morning on 4.9.2018 and the incident was seen by the villagers Ramesh Chandra and Sanjeev, but as the victim could not be traced the FIR was lodged on 9.9.2018 at 16.37 hours under Section 363, 366 IPC.

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Investigation proceeded in the matter and ultimately the victim was recovered alongwith the accused on 25.6.2019. Statement of victim was recorded under Section 164 Cr.P.C., wherein she stated that she was not enticed by the accused, rather her brother-in-law used to harass her and on raising of grievance, in that regard, her mother did not support her. It was alleged that for this reason the victim left on her own and she has not been enticed by any person. She also stated that she had returned after 9 months on her own accord. Upon conclusion of investigation, a chargesheet was submitted against the accused under Section 363, 366, 376(2)(Jha) IPC & Section 3/4 POCSO Act. The accused denied the charges and demanded trial.

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The trial commenced in the matter, in which the informant has appeared as PW-1, while the victim has been produced as PW-2. Ramesh, who apparently had seen the victim being enticed by the accused, is PW-3, whereas PW-4 is Sanjeev. The other witnesses are formal in nature. The Principal has also been produced as PW-7, as per whom the date of birth of victim was recorded as 6.3.2003 on the basis of a transfer certificate issued by the previous institution.

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During the course of trial, the victim has supported the prosecution case and has stated that she was enticed by the accused, who took her to Delhi and from there to Ahmedabad. She also stated that while going to Kanpur from Ahmedabad some intoxicate was administered and often she was made unconscious by similar means and that the accused used to commit sexual assault. She stated that on 25.6.2009 she was apprehended by the police alongwith accused.

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The first and foremost issue, which arose for consideration in the facts of the present case is as to whether the victim is minor or not? The trial court relying upon the date of birth mentioned in the school record has treated the victim to be fifteen and a half year old on the date of commissioning of the offence. We have examined the records and we find that the basis for determination of age by the trial court is the transfer certificate, on the basis of which the date of birth of victim was mentioned in the concerned institution in Class-VIth. What exactly was the basis of recording of date of birth in Class I in the earlier is not established by the prosecution. The medical age of the victim has been determined by the doctor as 17 years. It is otherwise accepted principle that variation of two year in age determined by the doctor is permissible.

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So far as the recording of date of birth on the basis of transfer certificate is concerned, we are not impressed by the reasoning adopted by the trial court for the simple reason that the transfer certificate admittedly is not a criteria for determination of age. Law in this regard has been settled recently by the Supreme Court in the case of P. Yuvaprakash Vs. State Rep. by Inspector of Police, (2023) SCC Online SC 846. In the event the date of birth mentioned in the school record, on the basis of transfer certificate, is ignored, the only material which remains on record is the opinion of the doctor, as per which the victim is 17 year old. We are, therefore, of the view that the prosecution has not been able to establish in the facts of the case that the victim was minor.

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Trial court has disbelieved the prosecution case essentially on the basis of testimony of witnesses produced during the trial, particularly the victim, since her testimony was not consistent. Various contradictions have otherwise been found in the testimony of the victim. It is not in dispute that the victim during her statement has admitted that she was taken to Delhi and from there to Ahmedabad and she travelled to various places alongwith accused for a period of almost 9 months. We do not find the version of victim that during such long period of time, she got no opportunity either to raise a protest or to inform the police or family members credible or reliable.

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Finding of the court below, in this regard, is affirmed.

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From the materials on record we are inclined to accept the view taken by the court below that the victim was with the accused not against her wishes, to be a permissible view. Since the testimony of victim has otherwise been disbelieved, with which we are not in disagreement with the conclusion drawn by the trial court that the prosecution has failed to establish its case beyond reasonable doubt appears to be a permissible view in the facts of the case. Though we have given our independent reasoning on some of the aspects, yet, we ultimately agree with the view taken by the trial court, as per which the accused is entitled to benefit of doubt. In such circumstances, we find that neither any triable issue is raised before us in this appeal nor any perversity is shown therein, 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.

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Order Date :- 27.9.2023 Anil

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

State of Up v. Biresh s/o Randhir

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State of Up v. Biresh s/o Randhir

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