The prosecution must provide credible evidence to establish the victim's age and the nature of the relationship; mere documentation without proper verification lacks probative value.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present appeal filed by the State under Section 378 of the Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”) is directed against the judgment and order of acquittal dated 26.06.1997 passed by the Court of Additional Sessions Judge, Nadiad (hereinafter referred to as “the trial Court”) in Sessions Case No.92 of 1992, acquitting the respondents - accused from the offences punishable under Sections 363, 366 and 376 read with Section 114 of the Indian Penal Code, 1860 (for short, “the IPC”).

2. The case of the prosecution, as per the charge at Exh.6, is that all the three accused had enticed away the daughter of the complainant (PW-4) on 09.08.1991, at 23:00 hours, and thereafter, the accused No.1 had developed physical relationship with her with the help of accused Nos.2 and 3. It is mentioned in the charge that the accused No.1 had taken the victim at various places and hence, committed rape. Thus, the charge under the provisions of Sections 363, 366 and 376 read with Section 114 of the IPC were framed against the accused. The trial Court, after examining the ocular as well as documentary evidence, has acquitted the accused.

3. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, appearing on behalf of the appellant – State, at the outset, has submitted that the acquittal recorded by the trial Court is required to be quashed and set aside as the evidence, which has surfaced on record, has not been appreciated in its true perspective. He has submitted that there is abundant evidence, which would suggest that the accused No.1 had committed rape on the minor daughter of the complainant.

4. Learned Additional Public Prosecutor Mr. Utkarsh Sharma, has referred to the deposition of Dr. Kokilaben Jayantilal Shah (PW-1), who is examined at Exh.11, and has submitted that her evidence would reveal that on the day of incident, the victim was minor and the accused No.1 had developed physical relationship with her.

5. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, has further referred to the deposition of the complainant, who is the father of the victim (PW-4). It is submitted that his deposition also discloses that the accused had enticed away his minor daughter and the accused No.1 had developed physical relationship with her, after she was taken at various places. It is submitted that the trial Court fell in error, while acquitting the accused by recording that the date of birth, as mentioned in the birth certificate at Exh.33 issued by the Corporation is not proved.

6. Learned Additional Public Prosecutor Mr.Utkarsh Sharma, has also referred to the medical examination papers of the victim as well as the accused and has submitted that the accused was major, at the time of committing the offence. He has referred to the evidence of the PW-3 (victim), who is examined at Exh.19 and has submitted that she has categorically proved the offence against the accused and has deposed that she was enticed away by the accused and was taken to various places. While referring to the evidence of the Investigating OfÏcer, it is submitted that the Investigating OfÏcer (PW-9), who is examined at Exh.29, has strengthen the case of the prosecution by his evidence. Thus, it is urged that the acquittal recorded by the trial Court is required to be reversed.

7. In response, learned advocate Mr. A. S. Timbalia, appearing for the respondents – accused has submitted that the judgment and order of acquittal passed by the trial Court does not require any interference since the same is precisely passed by the trial Court after appreciation of ocular as well as documentary evidence. It is submitted that there is no evidence at all against the accused and the prosecution has miserably failed to prove that the victim was a minor. It is submitted by him that the relationship between the accused No.1 and victim was consensual as both were having love affair.

8. We have heard the learned advocates appearing for the respective part