Appeal against acquittal by the State. The court rejected the claim of perversity in the trial court's finding that the female victims were major and voluntarily accompanied the accused. Leave to challenge the acquittal was declined.
Leave to challenge the judgment of acquittal was declined; appeal dismissed.
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Court No. - 47
Case :- GOVERNMENT APPEAL No. - 80 of 2023
Appellant :- State of U.P. Respondent :- Santosh Kumar Jogi S/O Nawal Kishore Jogi And Another
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 in terms of proviso to Section 378(3) Cr.P.C. to challenge the judgment of acquittal dated 28.11.2022, passed by Additional Sessions Judge/F.T.C.I, Hamirpur, in Sessions Trial No.162 of 2011 (State Vs. Santosh Kumar Jogi and another), arising out of Case Crime No. 504 of 2011, under Section 363, 366, 376 IPC, Police Station Majhgawan, District Hamirpur, whereby the accused respondents have been acquitted.
Briefly stated prosecution case is that two victims namely PW-2 and PW-4 went missing after they had gone to attend Mela on Diwali on 6.10.2010. As per the prosecution the age of victims were 16 years and 14 years, respectively, and they were not traceable any further. On the basis of such written report first information report was lodged in Case Crime No.504 of 2011. The two victims were recovered almost after ten months and in their statement under Section 164 Cr.P.C. they have stated that they joined the company of the accused voluntarily, and that they had not been pressurized to do so. The investigation ultimately concluded with submissions of chargesheet against the accused respondents.
The trial proceeded in which the two victims have appeared as PW-2 and PW-4 respectively. The medical examination was conducted of the two victims, wherein the age of the victim, as per the radio-logical report, was determined as 19 years. One of the victim was carrying pregnancy of 28 weeks, while the other was having a four month's child. Though in the examination-in-chief the victims have supported the prosecution case but in the crossexamination they have clearly stated that they were not exerted any pressure by the accused to join them, and that they had gone voluntarily with accused. It has further come in evidence that the victims travelled to Jhansi and then to other places by public transport vehicles without raising any protest, at any stage.
The trial court on the basis of such evidence has come to the conclusion that the victims were major and since they had joined the company of the accused voluntarily, as such the offences complained of against them are not made out. After recording such finding the trial court has acquitted the respondents.
We have been taken through the judgment by the learned AGA, who submits that facts have not been properly appreciated and that the conclusions arrived at by the court below are perverse.
Having examined the records, we do not find any substance in the contention so advanced, inasmuch as none of the facts recited in the order have been shown to be incorrect nor there is any perversity depicted in the judgment passed by the court below. 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. Consequently, prayer made by the State for grant of leave to challenge the judgment of the court below is declined. This appeal, accordingly, fails and is dismissed.
Order Date :- 7.2.2023 Anil
Digitally signed by :- ANIL KUMAR PATEL High Court of Judicature at Allahabad
2 issues framed by the court
Whether the State appeal against acquittal merit leave and be allowed to proceed.
Whether the judgment of the trial court in acquitting the accused is perverse.
4 provisions across 2 enactments
State of U.P.
Santosh Kumar Jogi
Another
Ashwani Kumar Mishra
Vinod Diwakar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
