IMPORTANT POINT
The appellate court must uphold acquittals unless there is compelling evidence to disturb the presumption of innocence established by the trial court.

JUDGMENT :

A.Y. KOGJE, J.

1. The present appeal is preferred by the original complainant under Section 413 of the Bharatiya Nagrik Suraksha Sanhita Act, 2023 against the judgment and order of acquittal dated 28.06.2024 passed by the Additional District and Sessions Judge and Special POCSO Judge, Anand in Special (POCSO) Case No. 38 of 2023. By the impugned judgment and order, the Sessions Court acquitted the respondent No. 1-accused for offences under Sections 363, 366 and 376(2)(n) of the Indian Penal Code, Section 4 and 6 of the POCSO Act and Section 3(2)(5) of the Atrocities Act.

2. The appeal has come up for admission and along with the appeal, the Appellant has also furnished set of evidence laid before the Special Court. The Court finds that both the victim and the accused are very young aged 18 to 20 years. Hence, the appeal is taken up for final hearing at admission stage, to which the learned Advocate for the appellant has agreed to and learned APP has also requested for final hearing as the State has not preferred any appeal (reportedly). The R&P is also received for the perusal of the Court.

3. The case of the prosecution is that on 11.07.2023, respondent No. 1-accused kidnapped victim, aged 16 years and 3 months, who is niece of the complainant, lured her on the false promise of marriage and took her to Ujjain and raped her and therefore, FIR being CR No. 11215006230333 of 2023 came to be registered with Borsad Town Police Station and after completion of investigation, charge sheet being 402 of 2023 came to be filed. Thereafter, charge Exh.6 came to be framed, which is as under:

“You, the accused: Harshkumar Sachinbhai Parmar, got acquainted with the victim-the complainant: Amitkumar Pravinbhai Parmar‘s minor niece, age 16 years 3 months prior to offence, tempted and allured her over conversations, induced her for marriage and kidnapped the said minor victim from Borsad, Laxmi Narayan Nagar, Pamol Road at 00.30 o’clock on 11/07/2023 with intention of illicit intercourse. Thereafter, you took her to Ujjain and committed intercourse and rape and doing thereby, you, the accused, have committed an offence punishable under Section-363, 366, 376(2)(n) of the IPC and Section-6 of the P0CSO Act, 2012 and Serction-3(2)(5) of the Atrocity Act within the jurisdiction of this Court.”

4. Learned Advocate for the appellant-complainant submitted that it is a serious case of rape of a minor girl aged 16 years and 3 months by luring her on the false promise of marriage. It is submitted that there is no discrepancy in the deposition of the victim and that the Sessions Court has not properly considered her evidence.

4.1 It is submitted that PW-1 Dr. Monica Dixit, Exh.8, who was the Medical Officer, in her deposition has clearly stated about the intercourse with the minor victim and the history given to her by the victim about whole incident. This medical evidence is also discarded by the Sessions Court.

4.2 It is submitted that PW-2 Dr. Milindsinh Yadav, Exh.14 was the Assistant Professor at Forensic Medicine Department at Karamsad Medical Hospital. Before this witness, the accused had given history of the accused eloping with the victim to Ujjain and having intercourse twice with the victim in a “Dharmshala.” This evidence is also discarded by the Sessions Court.

4.3 It is submitted that the Sessions Court has also discarded the evidence of the complainant-PW-3 Amitkumar Parmar, Exh.17, who is uncle of the victim. This witness in no uncertain terms in his deposition has stated that earlier also, respondent No. 1-accused abducted the victim from school, but at that time, the matter was not taken further, but the accused was scolded by the complainant. Similarly, the Sessions Court has also not properly considered evidence of wife of the complainant-PW-5 Minakshi Parmar, Exh.21.

4.4 It is also submitted that the Sessions Court has also not considered evidence of the Investigation Officer-PW-10 Abhishekh Gupta, Exh.45. Before this witness, the v