ORAL ORDER

(PER : HONOURABLE MR. JUSTICE S.H.VORA)

1. Feeling aggrieved and dissatisfied with the judgment and order dated 24/09/2021 passed by the learned Additional Sessions Judge & Special POCSO Judge, Dist: Botad in Special (POCSO) Case No.14 of 2019 for the offences under sections 363, 366 and 376 of IPC and u/s 4, 6, 8 and 12 of the POCSO Act, 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. According to prosecution case, the complainant’s daughter aged about 14 years and 10 months was staying at Village Babarkot at her maternal uncle home. As the victim did not return at home till late night of 23/12/2018, search was made and as she was not found, complaint came to be lodged by victim’s mother–Rekhaben on 28/12/2018. It is the case of the prosecution that prior to incident dated 23/12/2018, respondent-accused abducted the complainant’s daughter and therefore inquiry was made at the house of the respondent- accused; but he was also not found at home and thus the complaint was registered. It is further the case of the prosecution that it is within the knowledge of respondent- accused that complainant’s daughter is minor and with an intention to have sexual intercourse with her, enticed and abducted the complainant’s minor daughter by giving false promise of marriage and thus the complaint came to be registered at CR No.I-48 of 2018 by Paliyad Police Station for the offences punishable under Sections 363, 366 of IPC and under Sections 8 and 12 of POCSO Act and subsequently during the course of investigation Section 376 of IPC and Sections 4 and 6 of POCSO Act were added.

3. Pursuant to the aforesaid complaint registered against the respondent-accused, the Investigating Agency recorded the statement of witnesses and collected relevant evidence in the form of various Panchnama and also collected expert’s evidence and medical evidence in addition to obtaining statement of victim under Section 164 of Code. After having found material against the respondent-accused, charge-sheet came to be filed in the Court of learned Special Judge (POCSO), Botad. The respondent-accused provided charge-sheet papers and the learned trial Judge framed the charge at Exhibit-6 against the respondent-accused for the aforesaid offence. The respondent-accused pleaded not guilty and claimed to be tried.

4. In order to bring home the charge, the prosecution has examined following 15 witnesses:

5. The prosecution has also produced following documentary evidence:

6. On conclusion of evidence, both oral and documentary 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 of the offences, for which he was tried, as the prosecution failed to prove the case beyond reasonable doubt.

7. We have heard learned APP Ms. Shah appearing for the applicant State and have minutely examined the documentary evidence provided to us by learned APP during the course of hearing. The learned trial Judge after scrutiny of evidence, more particularly, deposition of victim-girl recorded below Exhibit-40 found and noticed that there was no any whisper as to any act of intercourse committed by respondent-accused with the victim on 23/12/2018 and thereafter. The victim has stated in her deposition that she had relation with the respondent-accused pr