State appealed against acquittal in a rape case. Bench refused leave to challenge acquittal, finding no error of law or triable issue raised.
Prayer for grant of leave to challenge acquittal refused; appeal dismissed.
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Court No. - 47
Case :- GOVERNMENT APPEAL No. - 48 of 2023
Appellant :- State of U.P. Respondent :- Jakir S/O Kallu Shah And 03 Others Counsel for Appellant :- Shiv Kumar Pal
Hon'ble Ashwani Kumar Mishra,J. Hon'ble Vinod Diwakar,J.
This appeal is by State alongwith an application for grant of leave to challenge the judgment of acquittal dated 19.10.2022, passed by Additional Sessions Judge (Fast Track Court), Bareilly, in Sessions Trial No. 1202 of 2010 (State of U.P. Vs. Jakir and 3 others), arising out of Case Crime No. 2755 of 2008, under Section 343 read with 34, 363 read with 34, 376 read with 34 IPC, Police Station Baradari, District Bareilly.
As per the prosecution case the informant's daughter, aged 15 years, had gone with her brother to get some medicines from Rohilkhand Hospital but before they could reach the hospital, vehicle developed some fault and the brother of victim left to call a mechanic. The victim, who was alone in the vehicle, was kidnapped by the four accused by threatening her with Tamancha subjected her to offence under Section 376 IPC. On the basis of such report the investigation proceeded and ultimately concluded with submission of chargesheet against the four accused, namely Nanhe Shah, Jakir, Sabir and Pappu.
The prosecution in order to prove its case has produced the first informant and the brother of the victim with whom she was going to hospital as PW-1 and PW-2. These two witnesses have turned hostile. The victim has been produced as PW-3. Though she has supported the prosecution case in the examination-in-chief but at the stage of cross-examination she has not fully supported the prosecution case. The victim has also been medically examined in which no internal or external injury has been found on her and the medical report has also been proved by the doctor, who has appeared as PW-5. The age of victim has been determined as 19 years. The statement of victim has been elaborately quoted by the trial court and various contradictions in her statement has been highlighted.
As against the prosecution case, the defence version is that the victim had previously solemnized marriage with accused Nanhe
Shah alias Mukaddar Ali, which was the second marriage of Nanhe Shah. It is asserted in the statement of accused Nanhe Shah under Section 313 Cr.P.C. that the victim wanted the accused to divorce his first wife and since he had not accepted this request, therefore, an imaginary and fabricated incident has been cooked up in order to falsely implicate the accused respondents.
The trial court has found substance in the defence version as even the prosecution witnesses namely PW-1 and PW-2 have turned hostile and have not supported the case of the victim. Though it is alleged by the victim that she sustained injuries and had various scratch marks but no such injury has been found on the victim at the time of her medical examination. On the basis of cumulative assessment of evidence led at the stage of trial, the court below has come to the conclusion that prosecution has failed to establish its case beyond reasonable doubt.
We have examined the judgment of acquittal with the assistance of learned AGA and the factual recital contained in the judgment are neither shown to be incorrect nor any error of law has otherwise been shown in appreciation of evidence, which may require this Court to interfere in the matter. 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 and for the reasons recorded above 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 :- 8.2.2023 Anil
Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad
1 issue framed by the court
Whether the High Court should interfere with the judgment of acquittal in a rape case despite procedural defects.
State of U.P.
Jakir S/O Kallu Shah
Ashwani Kumar Mishra
Vinod Diwakar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
