State of Uttarakhand v. Deepak

Judgment

(per HON’BLE MR. ASHISH NAITHANI, J.) Delay Condonation Application No.01 of 2022 Heard learned counsel for the parties on Delay Condonation Application.

2. As per office report, there is a delay of 32 days in preferring this Leave to Appeal as well as the Government Appeal. On being satisfied with the reasons

so furnished in the affidavit, we allow the application and condone the delay in filing leave to appeal. Special Leave to Appeal No.40 of 2022

3. The present Government Appeal has been filed under Section 378(3) of the Code of Criminal Procedure, 1973, by the State of Uttarakhand, challenging the judgment and order dated 29.10.2021 passed by the Learned Special Session Judge (POCSO), Uttarkashi in Special Session Trial No. 43 of 2020. The trial court, after evaluating the evidence, acquitted the respondent- 1 accused of the charges under Sections 363 and 376(2)(n) of the Indian Penal Code, 1860, and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.

4. Heard Mr. K.S. Bora, learned Deputy Advocate General for the State and Mr. Pankaj Kumar Sharma, learned counsel for the respondent and perused the records.

5. The prosecution case, as presented before the trial court, is that on 19.09.2020, the complainant (mother of the victim) lodged a report at Police Station Barkot, stating that her minor daughter, aged about 17 years, had gone to stay with her maternal grandmother at Village Badiya, Tehsil Barkot, District Uttarkashi, from their residence in Dehradun. On 10.09.2020, the accused, Deepak, allegedly enticed her and took her away. Despite multiple efforts to locate her, the complainant was unable to find her daughter, leading to the registration of an FIR under Section 363 IPC.

6. The investigating agency initiated proceedings, and during the course of the investigation, the victim was recovered from the custody of the accused on 08.10.2020 at Selaqui Bus Stand. The victim underwent a medical examination, and her statements under Sections 161 and 164 Cr.P.C. were recorded. The investigating officer (PW-8) collected various documentary and oral evidence, including the victim’s date of birth certificate, which confirmed her age as 17 years and 9 months at the time of the incident. 2 Following this, a charge sheet was filed against the accused under Sections 363, 376(2)(n) IPC and Sections 5/6 of the POCSO Act.

7. The trial court, while considering the case, examined several crucial aspects. The first and foremost issue was the victim's age. The prosecution relied on the birth certificate, which recorded her date of birth as

12.12.2002, making her a minor at the time of the incident. However, during cross-examination, victim’s mother admitted that she had reduced her daughter’s age in school records due to academic reasons, casting doubt on the prosecution’s claim regarding her minority.

8. Another significant consideration was the victim’s testimony. The victim (PW-2), who was the star witness in the case, turned hostile and categorically stated that she had accompanied the accused of her own free will and had neither been abducted nor coerced. She further testified that no sexual assault took place, which directly contradicted the prosecution’s case. The trial court gave due weight to this crucial testimony and noted that her voluntary statement exonerated the accused.

9. The medical evidence was another key factor in the lower court’s decision. The medical examination report revealed no external or internal injuries on the victim’s body. There were no signs of physical violence or forced sexual activity. The absence of injuries led the trial court to conclude that the prosecution had failed to 3 establish the occurrence of any sexual assault beyond a reasonable doubt.

10. The trial court also considered the delay in filing the FIR. The victim had gone missing on

10.09.2020, but the complaint was lodged only on

19.09.2020. The complainant (PW-1) failed to provide a reasonable explanation for this delay, which weakened the prosecution’s case further.

11. The evidence adduced through witness testimonies also had a significant bearing on the case. The grandmother of the victim (PW-3) stated that the victim was missing but did not provide any direct evidence linking the accused to abduction or coercion.

12. The investigating officer (PW-8) detailed the procedural aspects of the case but could not establish any conclusive evidence of criminal intent on the part of the accused.

13. Furthermore, the hotel manager (PW-6) testified that the accused and the victim had stayed in a hotel, and the accused had introduced the victim as his wife. This testimony lent support to the contention of the defence that the victim had accompanied the accused voluntarily.

14. The defence, in its arguments, maintained that the accused had been falsely implicated. It was submitted that the victim’s testimony negated the charges, and no independent evidence was brought on 4 record to corroborate the prosecution’s case. The accused further contended that he and the victim were married after the alleged incident, which, according to him, further undermined the prosecution’s allegations.

15. The trial court, in its judgment, emphasised the settled principle that criminal cases must be proved beyond reasonable doubt. In view of the victim’s hostile testimony, absence of medical evidence, unexplained delay in lodging the FIR, and lack of proof of coercion, the court found no sufficient grounds to convict the accused. Consequently, the accused was acquitted of all charges.

16. Aggrieved by the acquittal, the State preferred the present appeal under Section 378(3) of the Code of Criminal Procedure, 1973, challenging the judgment and order passed by the Learned Special Judge (POCSO), Uttarkashi.

17. Learned counsel the appellant-State contended that the trial court committed an error in acquitting the accused despite the availability of sufficient evidence, particularly with regard to the minority of the victim, which rendered her legally incapable of giving valid consent.

18. It was further submitted that the trial court failed to duly consider the settled legal position that the absence of external injuries does not by itself negate the occurrence of sexual assault, as held in several 5 authoritative pronouncements of the Hon’ble Supreme Court.

19. The prosecution also argued that the trial court accorded undue weight to the victim’s testimony despite the clear statutory mandate that any sexual activity involving a minor is deemed non-consensual under the law.

20. On the other hand, learned counsel for the respondent-accused supported the judgment of the trial court, contending that the prosecution had failed to discharge the burden of proving the case beyond reasonable doubt.

21. It was submitted that the statements made by the victim, which exonerated the accused, deserved due consideration, particularly in view of the medical evidence, which did not corroborate the prosecution's allegations. It was further argued that the trial court’s findings were based on a comprehensive and judicious appreciation of the evidence on record, and no perversity or miscarriage of justice had been demonstrated so as to warrant interference by this Court in appellate jurisdiction.

22. This Court has carefully perused the record and meticulously examined the judgment rendered by the trial court. The settled principle of criminal jurisprudence mandates that an order of acquittal should not be interfered with unless the findings of the trial court are shown to be perverse, manifestly erroneous, or 6 based on a complete misappreciation of the evidence, resulting in a miscarriage of justice. It is equally well established that, in the case of an acquittal, the presumption of innocence in favour of the accused stands further fortified

23. In the present case, the trial court has examined all relevant aspects, including the testimonies of witnesses, medical evidence, and surrounding circumstances.

24. The testimony of the victim, being the most vital component of the prosecution’s case, did not support the allegations made. The victim herself denied the occurrence of sexual assault and stated that she had accompanied the accused voluntarily.

25. In Sunil v. State of Haryana (2010) 1 SCC 742, the Hon’ble Supreme Court held that where the prosecutrix turns hostile, and there is no corroborative medical or independent evidence, the accused is entitled to acquittal.

26. Furthermore, the medical evidence failed to corroborate the charge of sexual assault. As held in Radhu v. State of Madhya Pradesh (2007) 12 SCC 57, while medical evidence is not always necessary to prove rape, its absence becomes relevant when the prosecutrix herself denies the occurrence of rape. In the instant case, there were no signs of coercion, injury, or forced intercourse and no other material corroboration. 7

27. In addition, the delay in lodging the FIR remained unexplained, further weakening prosecution’s version. The Hon’ble Supreme Court in Thulia Kali v. State of Tamil Nadu (1972) 3 SCC 393 emphasized that unexplained and inordinate delay in lodging the FIR can be fatal to the prosecution’s case as it creates room for embellishment or afterthought.

28. In view of the foregoing discussion, this Court does not find any substantial reason to grant leave to appeal. The findings of the trial court are well-reasoned and based on a proper appreciation of the evidence. No manifest error or legal infirmity has been demonstrated that would warrant interference by this Court in the exercise of its appellate jurisdiction under Section 378 Cr.P.C. Government Appeal No.15 of 2022

29. Accordingly, the application for leave to appeal is rejected. Consequently, the Government Appeal is dismissed in limine. ______________________ MANOJ KUMAR TIWARI, J. ____________________ ASHISH NAITHANI, J. Dt:19th March, 2025 Arti 8