The presumption of innocence, the requirement of evidence beyond reasonable doubt, and the limited scope of interference with an acquittal under Section 378 of the Code of Criminal Procedure.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)

1. Feeling aggrieved and dissatisfied with the judgment and order of acquittal dated 23.12.2021 passed by the learned Additional Sessions Judge and Special Judge (POCSO), Mehsana in Sessions Case No.37 of 2018 for the offences under Sections 363, 366 and 376 of the Indian Penal Code and Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012, the applicant – State of Gujarat has preferred this application to grant leave to appeal as provided under section 378(1)(3) of the Code of Criminal Procedure, 1973 (“the Code” for short) inter alia challenging the judgment and order of acquittal in favour of the respondent accused.

2. The facts as per prosecution case are that, on 30.03.2018 at about 3:30 p.m., the victim has told his father that she will go to the bank for withdrawal of money. Since the victim has not returned back to the home till evening, the complainant – father of the victim has inquired in the bank and at other places, however the victim was not found. Therefore, he has told about this incident to his nephew Manish. They both – complainant – father of the victim and Manish went to the market for searching the victim. At that time, by hearsay, they came to know that one Thakor Jaydip Arvindji of their village has kidnapped the victim and said Thakor Jaydip was also not found at his home. Therefore, the complainant lodged a complaint with regard to the incident before the Ladol Police Station, which was registered as I – C.R. No.28 of 2018 for the offences under Sections 363 and 366 of the Indian Penal Code.

3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence in form of medical evidence and drawn Panchnama(s) and other relevant evidence for the purpose of proving the offence. After having found material against the respondent accused, charge-sheet came to be filed in the Court of learned Special Judge, (POCSO) and Additional Sessions Judge, Mehsana.

4. After filing the charge-sheet, learned trial Sessions Judge framed charge at Exh.7 against the respondent accused for the aforesaid offence. The statement of the respondent accused has been recorded, where he pleaded not guilty and claimed to be tried.

5. In order to bring home charge, the prosecution has examined 18 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para : 4 & 5 of the impugned judgment and order.

6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the respondent accused so as to obtain his explanation/answer as provided u/s 313 of the Code. In the further statement, the respondent accused denied all incriminating circumstances appearing against him as false and further stated that he is innocent and false case has been filed against him. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge acquitted the respondent accused from the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. Against which, the complainant has preferred this appeal before this Court along with an application for seeking leave to appeal.

8. We have heard learned advocate learned APP Ms. Shah appearing for the applicant/ appellant – State. We have perused the papers submitted by learned APP at the bar.

9.1 From the record, it transpires that there was a love affair between the victim and the respondent – accused. They known to each other since more than three years. The same is supported by the statement of the victim herself.

9.2 It is a matter of record that, the complaint is based on hearsay. No one has shown the victim and the respondent accused together. Therefore, the initiation process of filing the complaint is itself baseless. If the d