Neutral Citation No.

- 2023:AHC:157529-DB

Court No. - 46

Case :- GOVERNMENT APPEAL No. - 360 of 2023

Appellant :- State of U.P.

Respondent :- Salim S/O Khalik And 2 Others
Counsel for Appellant :- Ashutosh Kumar Sand

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

This appeal is by State alongwith an application for grant of

leave to challenge the judgment of acquittal dated 24.5.2023,
passed by Additional Sessions Judge/Special Judge, POCSO
Act, Court No.13, Saharanpur, in Special Sessions Trial No.16
of 2020 (State of U.P. Vs. Salim), connected with Special
Sessions Trial Nos.338 of 2020 and 37 of 2020, arising out of
Case Crime No.369 of 2019, under Section 363, 366, 368, 376
IPC & Section 3/4 POCSO Act, Police Station Chilkana,
District Saharanpur.

As per the informant his sister, aged about 20 years had been
kidnapped by unknown persons at about at about 7.30 pm and
she has not been traced thereafter. On the basis of such written
report a first information report was registered under Section
366 IPC. The investigation proceeded and it was found that the
victim was seen with accused in Court on 9.9.2019 and was not
seen thereafter. After 25 days the victim was found and was
given in custody of the informant. Ultimately a chargesheet
came to be submitted against the accused persons under
Sections 363, 366, 368, 376 IPC & Section 3/4 POCSO Act.
The informant also alleged later that the age of the victim is 16
years as per the school certificate. The concerned Magistrate
committed the case to the court of sessions, where the trial
commenced.

The informant has appeared as PW-1 and has supported the

prosecution case. The victim has appeared as PW-2 and has
supported the prosecution case, as per which the accused had
forcibly kidnapped her and she was taken to Allahabad from
Delhi. The signatures of victim were also obtained on certain
blank pages. Medical examination of the victim was also
conducted in which no external or internal injuries were found.
The victim in her statement before the Medical Officer had
disclosed that she was coming out of her house when the
accused came from behind; gagged her and took her away. At
the stage of medical examination the victim also disclosed her
 age of 18 years. In the statement of the victim made before the
court, she supported the prosecution case but there are material
contradictions found in her testimony at the stage of cross-
examination. The trial court has also noticed the contradictions
in the statement of victim made at the different stages of the
proceedings i.e. at the stage of recording of statement under
Section 161 and 164 Cr.P.C. vis-a-vis the statement made in the
court and before the doctor. During the course of trial,
documents were also produced to show that in fact the victim
and the accused had filed a Writ Petition No.22061 of 2019
contending that they have solemnized Nikah and that the family
members are harassing. The fact that victim travelled by public
transport to Allahabad where she gave the affidavit in support
of the writ petition and also the fact that no complaint
throughout was made by her has been construed by the court
below to be an act of consent on part of the victim to have
joined the company of accused. The medical examination also
does not support commissioning of any offence. As per the
medical report also the age of victim has been determined as 20
years. In the FIR also her age has been shown as 20 years. In
the electoral roll also the victim is shown to be major. On the
basis of such evidence on record the trial court has come to the
conclusion that the victim is major and had joined the company
of the accused out of her own willingness. Relying upon the
evidence led in the matter, the trial court has consequently come
to the conclusion that the prosecution has failed to establish the
guilt of the accused beyond reasonable doubt and has,
accordingly, acquitted the accused.

We have been taken through the judgment by the learned AGA,

who submits that the trial court has not appreciated the evidence
in correct perspective and that the findings returned by the court
below are perverse.

We have carefully examined the judgment of the court below

and upon its examination we find that 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 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 :- 7.8.2023

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