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2020 Supreme(All) 1239
IN THE HIGH COURT OF ALLAHABAD
Sunita Agarwal, Pathak, JJ.
Sugara - Appellants
Vs.
State of U.P. and Ors. - Respondent
Criminal Misc. Application (Leave to Appeal Defective) No. 19 of 2020
Decided On : 18-02-2020
For the Appellant : Dan Bahadur and Vikas Srivastava
For the Respondents: A.G.A.
Headnote:
Indian Penal Code - Sections 376, 452, 504 and 506 – Criminal Procedure Code - Section 200 - Delay condo nation – Rape - Circumstances evidence - Trial Court – Claim of compensation - By means of instant application, applicant seeks indulgence of this Court to grant special leave to appeal which is arising out of Complaint moved by under Sections 376, 452, 504 and 506 IPC against Court of Chief Judicial Magistrate Rampur leveling allegation against them that in intervening night while victim was sleeping alone in her house all three accused persons, as mentioned above armed with entered her house with intention to sexually assault her - While entering into the room, they grabbed victim and subjected her on gun point to rape and molested her taking a turn one by one – Held, If evidence of is read and considered in totality of facts and circumstances of instant case, in which crime is alleged to have been commissioned court are of view that the deposition of prosecution witnesses does not inspire confidence of this Court - Evidence of is not worthy of credibility and explicitly unreliable - Therefore in present matter statement of cannot be made solitary basis for conviction of accused - There is no substantial and compelling reasons to reverse order of acquittal passed by Trial Court - Prosecution has not disclosed true genesis of crime - In such a situation of fact accused persons respondents are entitled to get benefit of doubt and their innocence could easily be inferred – Thus court find no good ground to interfere in findings of fact returned by the Court below in of the accused persons and in our opinion it should be accepted by this Court - It cannot be said beyond reasonable doubt that the victim was subjected to sexual assault and accused persons respondents directly involved in the commission of such crime - There is scope of probabilities and the prosecution had failed to discharge its onus to prove its accusation - There is no proper evidence and material on record and the surrounding circumstances to hold the contesting respondents/accused guilty - Court of appeal would not ordinarily interfere with order of acquittal unless approach is vitiated by manifest illegality - In an appeal against acquittal this Court will not interfere with an order of acquittal merely because on evaluation of the evidence, a different plausible view may arise and views taken by Courts below is not correct - In other words, this Court must come to conclusion that views taken by learned Courts below while acquitting, cannot be views of a reasonable person on the material on record - Appeal is dismissed
JUDGMENT :
Dinesh Pathak, J.
Order on Criminal Misc. Delay Condonation Application No. 01 of 2020:
1. Heard Shri Vikas Srivastava, learned counsel for the applicant on the application filed for condonation of delay in filing special leave to appeal under Section 378 (4) Cr.P.C. As per the report submitted by the Reporting Section, there is a delay of 18 days in filing of the present leave to appeal.
2. We have gone through the affidavit filed in support of the delay condonation application. Cause shown in the affidavit filed in support of the delay condonation application is found sufficient for condoning the delay.
3. Accordingly, delay in filing the instant leave to appeal is condoned. Delay Condonation Application is allowed.
4. Instant application, on board, is treated having been filed within time as prescribed by law.
Order on Appeal:
5. Heard Sri Vikas Srivastava, learned counsel for the appellant.
6. The present criminal application for special leave to file appeal (under Section 378 (4) Cr.P.C.) has been preferred by the present appellant (prosecutrix) against the judgment and order dated 23.10.2019 passed by Additional District & Sessions Judge/Fast Track Court (Offence against Women), Rampur in Sessions Trial No. 351 of 2015 (State of U.P. v. Abrar and others) acquitting all the three accused persons (respondent Nos. 2, 3 and 4) under Sections 376-D, 452, 323 and 506 I.P.C.
7. By means of instant application, applicant seeks the indulgence of this Court to grant special leave to appeal which is arising out of Complaint No. 254 of 2014 moved by the prosecutrix under Sections 376, 452, 504 and 506 IPC against Abrar (respondent No. 2), Hidakat Hussain (respondent No. 3) and Gose Azam (respondent No. 4) in the Court of Chief Judicial Magistrate, Rampur leveling allegation against them that in the intervening night of 29/30.8.2013 at about 2:00 a.m., while victim was sleeping alone in her house, all the three accused persons, as mentioned above, armed with Tamancha (country made pistol) entered her house with intention to sexually assault her. While entering into the room, they grabbed the victim and subjected her, on the gun point, to rape and molested her taking a turn one by one.
8. It is further alleged that while she protested, accused have beaten her up by the butt of Tamancha and thrashed her resulted in inflicting several injuries. When she raised alarm, Aftab Hussain, Asiya and other persons have entered into the scene and challenged the accused persons but they ran away by brandishing gun and have threatened them to life, in case anyone tried to follow them. Asiya, while seeing the victim in naked condition, dressed her up. The victim approached the Police Station, Tanda to get her report registered but she received negative response. On 31.8.2013, she got herself medically examined in the District Hospital, Rampur and moved representation before the Superintendent of Police, Rampur but it went in vain. Ultimately, on her complaint after considering her statement under Section 200 Cr.P.C. and statement of her witnesses namely Aftab Hussain (victim's son) and Asiya (victim's sister-in-law) under Section 202 Cr.P.C., the Court below has taken cognizance under Section 376-D, 452, 323 and 506 IPC and registered a case as Sessions Trial No. 351 of 2015.
9. Learned Court below has framed charges on 7.1.2016 against the accused persons under Section 376-D, 452, 323 and 506 I.P.C.
10. In order to substantiate the accusations, prosecution has examined as many as three witnesses.
11. PW-1 (Prosecutrix) has deposed that the incident took place as long as three years back at about 2:00 a.m. and at that time she was sleeping alone in her room. The accused persons namely Abrar, Hidakat Hussain and Gose Azam entered the room armed with Tamancha and put it on her temple. On awakening, she was threatened to life, if she raises alarm, thereafter she had been sexually assaulted by all the three accused persons by taking a turn one by one. Last
