Court No. - 45
Case :- GOVERNMENT APPEAL No. - 1435 of 2013 Appellant :- State Of U.P.
Respondent :- Ram Kishun Counsel for Appellant :- Govt. Advocate Hon'ble Shashi Kant Gupta,J. Hon'ble Ajit Kumar,J.
Heard learned AGA for the State appellant/applicant and perused the material on record.
This application has been filed by the State appellant/applicant with the prayer the prayer that leave to appeal maybe granted against the judgment and order dated 19.12.2012 passed in Sessions Trial No. 33 of 2010 (State v. Ram Kishun ) arising out of case crime no. 214 of 1983 under Section 376 IPC, P.S Dhandhata District Santkabir Nagar by the learned Additional Sessions Judge, Santkabir Nagar, whereby the accused respondent has been acquitted for the offence punishable under the section referred to above.
The FIR has been lodged by the prosecutrix herself on 4.11.1983, which was registered under section 376 IPC. In the FIR, it has been alleged that around 1:00 am, when the prosecutrix had gone to cut the grass, accused respondent, resident of same village approached her and dragged her inside the field of Arhar, where he threw her on the ground and committed rape on her. After hearing hue and cry, , Sri, S/o Laxman, Ramlagan S/o Jagesar Harijan, Ramdev Harijan, Jagannath Harijan, Komal Harijan and many peoples rushed on the spot and after seeing them, accused respondent fled away from spot.
Except FIR witness PW. -2 Ramlagan, none of the FIR witness was produced before the examination. P.W.-2 has also not supported the prosecution story in his statement and they denied that he had seen the accused -respondent committing rape on victim. He also stated that on fateful day, he saw that the prosecturix was quarrelling with the accused respondent over boring. It has come on record that prosecutrix was medically examined on the next day of the alleged incident but neither any internal injury on private part nor any external injury on person was found and no spermatozoa was detected in the vaginal swear, as such, the doctor has not given any definite opinion regarding rape.
Defence has also produced DW-1 Mushtaq Ahmad and DW-2 Harishchandra Lal in support of his case.
The court below after scanning record has recorded a finding that no cogent and convincing was evidence found on record to show that any rape was committed on prosecutrix. The court below has further held that there is material contradiction in the testimony of alleged eye- witness PW. -2 Ram Lagan and testimony of prosecutrix.
From perusal of the record, we do not find any factual or legal error in the assessment of evidence by the court below while acquitting the accused respondent. Moreover, the view taken by the court below is a possible view. The court below has given cogent, convincing and satisfactory reasons while passing the order of acquittal.
We therefore, do not consider it to be a fit case for grant of leave to appeal to the applicant. The application seeking leave to appeal is, accordingly, rejected and, consequently the appeal is also dismissed.
Order Date :- 28.2.2018 Sanjeev