State of U.P v. Suraj and others, arising out of Case Crime No
Case Details
Neutral Citation No. - 2023:AHC:175651-DB Court No. - 46 Case :- GOVERNMENT APPEAL DEFECTIVE No. - 193 of 2023 Appellant :- State of U.P. Respondent :- Jogendra And Another Counsel for Appellant :- Shiv Kumar Pal Hon'ble Ashwani Kumar Mishra,J. Hon'ble Surendra Singh-I,J. 1. This appeal is by the State along with application for grant of leave to challenge the impugned judgment of acquittal dated 18.10.2022 passed by
Legal Reasoning
the Trial Court in Special Session Trial No. 02 of 2015, State of U.P. vs. Suraj and others, arising out of Case Crime No. 481 of 2014, under Sections 363, 366, 376 I.P.C. and Section 6 of the POCSO Act, Police Station Kayamganj, District Farrukhabad. 2. As per prosecution case, a written report (Exhibit Ka-1) was lodged by the father of the victim stating that his 16-year-old minor daughter was at home at 9:00 in the evening. Informant woke up at 11 to urinate, when he found his daughter missing. On search he found that Rs. 50,000/- cash along with some gold and silver items were missing from the house. Informant along with neighbours, Manohar and Mahaveer tried to locate his daughter and was informed by one Madanpal that his daughter was seen going with accused Suraj s/o Krishna, who lives in the house of the accused Jogendra. The minor victim was found going on a motorcycle along with Suraj, Jogendra and the other accused William. Accused Suraj and Jogendra were not found at home and as per the written report, they have enticed the minor victim. The incident is of 06.11.2014. On the basis of such allegations, Case Crime No. 481 of 2014 came to be lodged under Sections 363, 366 I.P.C. read with Section 4 of POCSO Act. On the conclusion of investigation, charge sheet was submitted against three accused and the trial commenced. All the accused had earlier denied their implication in the offence. 3. It is worth noticing at the outset that the main accused Suraj, who allegedly had enticed the minor victim, has died during the course of trial and consequently trial abated as against the said accused. 4. During trial, the informant has appeared as PW-1 and has supported the prosecution case. He specifically stated that after the victim left the house, he found Rs. 50,000/- cash along with a gold chain of 20 gm and other jewellery missing from the house. He has alleged that the accused persons have enticed his minor daughter, who has eloped with them with Rs. 50,000/- cash and jewellery. P.W.-2 is the brother of the victim and has also supported the prosecution case of the victim being enticed by the accused, who left the house along with cash and jewellery. The victim has been produced as P.W.-4, who has stated that the incident is of 9:00 p.m. on 06.11.2014. She claims to have gone to roof to ease herself at around 11:00 and found accused Suraj standing behind the house with a country-made pistol and threatened her to come with him or else he would implicate all the family members. As per the victim, she joined the company of accused Suraj out of fear. She has further stated that another boy named William took her on the motorcycle to the house where she was sexually assaulted by Suraj and William. William, thereafter, left and Suraj took the victim to Jalalabad where William also arrived and both committed sexual assault on the victim. The victim was going in a bus to an unknown place when she telephoned her parents and the Police came, whereafter, Suraj fled from the spot. Dr. Madhu Agarwal has examined the victim and has proved her medical examination report as per which there were no external or internal injuries on the victim and her hymen were old torned. As per the supplementary medical opinion report, the victim was around 17 years of age. Other witnesses are formal in nature. P.W.-8 is Madanpal, who allegedly saw the victim leaving with accused Suraj and has supported the prosecution case. P.W.-10 is the Principal of the institution from where the victim passed her high school 2 examination in the year 2014 and her date of birth was recorded as 13.07.1999. 5. On the basis of evidence led by the prosecution in the matter, statement of accused was recorded under Section 313 Cr.P.C. wherein they have denied their implication. Accused Jogendra has stated that he has been falsely implicated only because he happens to be the cousin of Suraj, who has died. Accused William has also denied his implication. 6. The Trial Court has primarily disbelieved the prosecution case on a careful analysis of the testimony of victim herself vis-a-vis the testimony of the first informant i.e. P.W.-1. 7. P.W.-8 Madanpal, who has allegedly seen the victim leaving her house with Suraj, has only taken the name of William and has not named Jogendra as being the person who was going with the victim. The victim, however, has categorically stated in her statement under Section 164 Cr.P.C. before the Magistrate that she had seen William for the first time before the Magistrate and had not seen him earlier. The Trial Court has consequently disbelieved the implication of William relying upon the testimony of the victim herself as per which she had not met the accused William earlier. Though the victim in her statement made before the Court has later implicated William, assigned the role of sexual assault upon him also, but it is apparent from the material on record that this part of the statement of victim in implicating William is a clear improvement over what was disclosed by her earlier during investigation before the Magistrate. There is absolutely no explanation furnished by the prosecution with regard to such improvement on a material aspect. So far as accused Jogendra is concerned, his implication apparently is only for the reason that he was cousin of deceased Suraj, who was residing with Jogendra. The victim, however, has not alleged any sexual assault on her by accused Jogendra. Even Madanpal has not specifically implicated Jogendra as being the person who enticed the victim. The Trial Court, on the basis of such evaluation of evidence, has disbelieved the prosecution case. 3 8. It is also worth noticing that the version of victim has otherwise been found full of contradictions at different stages of the proceedings. The victim in her examination-in-chief has stated that accused William took her to Suraj and sexually assaulted her. However, in the cross examination, the victim states that she came to the house of William first and she does not know at what time she reached the house of William. The house of William is apparently a kilometre away from the house of the victim. This statement of victim for implicating accused William has been disbelieved in view of her specific statement made before the Magistrate that she had never seen William earlier nor she knows him. The Trial Court has found it difficult to believe the statement of victim that she reached the house of William even though she did not know him from before. At the other stage, the victim has stated that she had gone to the house of Suraj. The two contrary statements have been confronted to the victim and she states that both her versions are correct. 9. The Trial Court on the basis of material available on record has come to the conclusion that the prosecution case is not convincing or reliable as the testimony of victim is not consistent and lacks credibility. The main allegation of enticing the victim and subjecting her to sexual assault is otherwise against accused Suraj, who has already died. There is no allegation of sexual assault against accused Jogendra. The implication of other accused William has been disbelieved considering the previous statement of victim under Section 164 Cr.P.C. 10. From the material placed on record, we find the view taken by the Trial Court to be clearly permissible view and just because a different view could be taken in the matter, would not be a ground to this Court to interfere in the judgment impugned of acquittal. 11. The prayer for grant of leave is refused and the appeal is dismissed, accordingly. Order Date :- 6.9.2023 Brijesh Maurya Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad 4