Court No. - 45
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 312 of 2021 Appellant :- Smt. Santira Respondent :- State of U.P. and Another Counsel for Appellant :- Raghvendra Prakash Counsel for Respondent :- G.A.
Hon'ble Arvind Kumar Mishra-I,J. Hon'ble Vikas Budhwar,J.
(1) Heard Sri Amit Kumar Singh, learned advocate holding brief of Sri Raghvendra Prakash, learned counsel for the appellant/informant and Sri Bhanu Prakash Singh, learned Brief Holder for the State and perused the record of this criminal appeal u/s 372 Cr.P.C..
(2) The instant criminal appeal has been preferred by the appellant/informant- Smt. Santira- against the judgement and order of acquittal dated 12.10.2021 passed by Special Judge (POCSO Act), Azamgarh in Special Sessions Trial No.47 of 2018 arising out of Case Crime No.73 of 2018, under Sections 323/34, 364/34, 376D IPC and Section 3/4 of Protection of Children from Sexual Offences Act, 2012, police station- Ataraulia, District- Azamgarh, by which the accused- respondent- Motichand was acquitted of the charges levelled against him under the aforesaid Sections of Indian Penal Code and POCSO Act.
(3) The factual matrix as discernible from the certified copy of the judgement of this appeal appears to be that the case was registered at police station- Ataraulia, District- Azamgarh against the respondent no.2- Motichand under Sections 323/34, 364/34, 376D IPC and Section 3/4 of Protection of Children from Sexual Offences Act, 2012 at case crime No.73 of 2018 on 18.04.2021 at 16.44 hours. The brief description contained in the written report- Exhibit Ka-1- reflects that when the informant- Smt. Santira w/o Nokhai, R/o village- Selhrapatti within police station- Ataraulia, district- Azamgarh was sleeping infront of her house on 17.4.2018 along with her husband and children in the night, accused- Motichand took away her four years old daughter and beat her and Neeraj (son of Motichand) molested her daughter and threw away her in the water and thereafter took her out of water. The prosecutrix came back home and narrated the entire story. Her cloths and hairs were splattered with mud.
(4) Contents of written report (Exhibit Ka-1) were taken down in the concerned check FIR at case crime number 73 of 2018, under sections 323, 364, 376 I.P.C. and ¾ POCSO Act, 2012 on 18.04.2021 at 16.44 hours at police station- Ataraulia, district- Azamgarh. The copy of check FIR is Ex.Ka.5. On the basis of entry so made in the Check FIR, the case was registered against the aforesaid accused in the General Diary, which is Exhibit Ka-6.
(5) On the basis of first information report, the investigation ensued and the Investigation Officer visited to the spot recorded the statement of the various prosecution witnesses and victim under Section 161 Cr.P.C. and prepared the site plan. After completing the investigation, charge sheet was filed against the respondent no.2- Motichand along with one co- accused- Neeraj in the aforesaid Section of Indian Penal Code. The respondent no.2- Motichand was put to trial and he was heard on the point of charge, consequent thereupon charges as aforesaid was framed against respondent no.2 Motichand by the trial Judge. The entire narration of the incident as well as prosecution testimony has been described in the body of the judgement of the trial Judge and it would serve no worthy purpose if the same is reiterated here. However, the same shall taken note of as and when the context so requires in this case.
(6) In order to prove its case, the prosecution examined as many as nine prosecution witnesses. Brief sketch of the same is as here under:
P.W.1 Smt. Santira is the informant in this case and mother of the victim.
P.W.2 the prosecutrix herself (four years old). P.W.3 is Nokhai (father of the victim). P.W.4 is Foredil. P.W.5 Rakesh Kumar Singh is the Investigating Officer of this case. P.W.6 is Dr. Priyanka Tiwari, Emergency Medical Officer District Women Hospital, Azamgarh. P.W.7 is Constable Sulekha Devi. P.W.8 is Dr. Dipti Gaurh, P.W.9 is Sri Ashok Kumar Yadav- the Assistant Medical Officer, Azamgarh.
Various Exhibits were also marked during the course of trial. A brief sketch of the same as discernible from record is as hereinunder.
(7) The written report is Exhibit Ka-1. The statement of the victim under Section 164 Cr.P.C. Exhibit Ka-2. The site plan is Exhibit Ka-3. The charge- sheet is Exhibit Ka-4. The check FIR is Exhibit Ka-5. The General Diary entry whereby the case was registered against the accused is Exhibit Ka-6. The copy of the statement of the prosecutrix under Section 161 Cr.P.C. is Exhibit Ka-7. The medical examination report of the prosecutrix is Exhibit Ka-8. The pathological report form is Exhibit Ka-9. Supplementary examination report is Exhibit Ka-10 and the assessment of age of the prosecutrix is Exhibit Ka-11.
(8) After recording the testimony of the prosecution, the evidence for the prosecution was closed and the statement of the accused was recorded under 313 Cr.P.C., wherein, he claimed to have been falsely implicated in this case on account of enmity.
(9) The defence produced testimony of two witnesses- Harishchandra Nishad D.W.1 and Ramesh Prajapati D.W.2. Apart from that, documentary evidence was also produced i.e. certified copy of the NCR No.134 2017, paper No.27 Kha and NCR No.239 of 2017 and paper No.28 Kha through list 26 Kha.
(10) Thereafter, the evidence for defence was closed and after considering the merit of the case, charges were found not proved. Resultantely, the trial court after considering the case on its merit and appraisal of facts and circumstances of the case, returned finding of acquittal against the accused.
(11) Consequently, this appeal.
(12) Sri Amit Kumar Singh, learned Advocate holding brief of Sri Raghvendra Prakash, learned counsel for the appellant/informant has submitted that so far as the judgement and order of acquittal is concerned, the same is not based on the entire facts, circumstances and evidence and in particular the evidence of the prosecutrix while recording the finding of acquittal. He has also engaged attention of this Court to the testimony of the prosecutrix in her examination-in-chief and claimed that the entire incident and its particulars have been elaborated and what else can be expected of a victim who was only 4 years of age at the time when the offence was committed against her, otherwise there was no point for a girl of tender years (4 years) ever to have come out with such particulars as alleged against the accused.
(13) May be that there are certain contradictions in her testimony and statement but that would not throw away the prosecution case; and that being so, proper appreciation of the evidence has not been done. Not only this, but also the first information report was promptly lodged. The investigating Officer had submitted the charge- sheet, inter alia, under Section 376D IPC and two persons were involved in committing the offence. The offence of rape under Section 376 IPC is proved to have been committed against the victim. Conjectural and surmises worked as basis for acquittal of the respondent no.-2.
(14) Sri Bhanu Prakash Singh, learned Brief Holder for the State has adopted argument of counsel for the informant.
(15) Upon careful perusal of the testimony of the entire case and in particular the testimony of the prosecutrix it appears that no doubt the FIR narrates the version regarding taking away of the girl by the respondent no.2- Motichand, however, it is obvious that no one was present on the spot to see the prosecutrix being taken away at that point of time. The story was narrated by the prosecutrix when she came back to home after the occurrence and divulged the occurrence.
(16) We have also gone through the statement of the prosecutrix wherein lot of contradictions appear in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C., however, in so far as her testimony before the trial court is concerned, the things have taken proper shape and this witness- the prosecutrix- was found to be tutored and she has categorically stated that she, at the instance of her father, her mother and counsel is telling all theses things in the court.
(17) Now when we match this particular testimony, vis a vis, the documentary evidence filed by the defence as discussed above, obviously point of enmity is very much reflected to have been in existence between the parties and it is obvious that the testimony of the prosecutrix under these circumstances cannot be accepted and taken to be truthful version and being flawless. No doubt the prosecutrix is aged about four years, but tenderness of her age has been tried to be misused by none other than the informant herself when she lodged the FIR. There is no answer as to how and why a girl, four years old is narrating particularly about her being tutored by her parents and the counsel in this case and that being so, we hesitate to believe the submission of the counsel for the appellant- informant that no proper appreciation of the evidence was done by the trial court. Here, the testimony of the prosecution does not inspire confidence and it cannot be said to be innocuous. Thus finding of acquittal is based on material on record.
(18) It is trite criminal jurisprudence that the finding of acquittal recorded by the trial Judge, if found to be based on material on record, the same shall not be affected, for the reason that no doubt in cases where alternative views regarding the occurrence are also possible but the view which favours the accused shall be taken to be the view. In this case, the view taken by the trial Judge is found to be based on material on record. The judgement of acquittal is well discussed, reasoned and self speaking and explanatory of the cumulative facts and circumstances of this case. That being so, we decline to interfere in the impugned judgement and order of acquittal dated 12.10.2021 passed by Special Judge (POCSO Act), Azamgarh in Special Sessions Trial No.47 of 2018 arising out of Case Crime No.73 of 2018, under Sections 323/34, 364/34, 376D IPC and Section 3/4 of Protection of Children from Sexual Offences Act, 2012, police station- Ataraulia, District- Azamgarh.
(19) In view of above, the application for leave to appeal is rejected, consequently, this appeal goes into oblivion and the same stands dismissed.
Order Date :- 16.12.2021 Raj