@JUDGMENTTAG-ORDER
Mr. Anant S. Dave, J. (Oral) - This is an application under Section 378 (1) (3) of the Code of Criminal Procedure, 1973 seeking leave to
appeal against judgment and order dated 4.7.2016 passed by the Court of learned Special Judge (POCSO), Amreli, in Special (POCSO) Case
No.9 of 2016 and 1 of 2016, wherein at the end of trial, learned Judge was pleased to acquit the opponents for the offences under Sections 363,
366, 376 of the Indian Penal Code and Sections 4, 6 and 8 of Protection of Children from Sexual Offences Act, 2012 (for short, ""POCSO Act"").
2. Learned Additional Public Prosecution has taken us to the case of prosecution in the backdrop of a complaint dated 15.10.2013 at
Savarkundla Rural Police Station, it was disclosed by the complainant that on previous day, he along with his wife, younger daughter and son went
to the field around 11 O'' clock in the morning and his elder daughter Bhavati and Bhavita both were at his house and during noon hours
complainant received telephone of his daughter, Bhavita, who informed him that another daughter Bhavati has left the house around 14.00 hours
and, thereafter, she has not returned. Inquiry was made and complainant came to know that respondent No. 2 Arvind alias Jayanti son of
Dahyabhai Parmar residing in Dalit Vas took his daughter away and later on FIR was registered for the offences for which reference is made in
earlier paragraph. At the end of investigation, charge-sheet was filed and looking to the nature of charge it was tried by Special (POCSO) Court,
which resulted into acquittal of the respondents.
3. What weighed with the trial Court in ordering acquittal of the respondents is failure on the part of the prosecution to prove its case beyond
reasonable doubt and testimonies of prosecutrix, her statement before learned Magistrate under Section 164 of the Code of Criminal Procedure,
medical evidence about examination of body of person, cogent and convincing evidence with regard to date of birth of prosecutrix was again not
established and the trial Court ordered acquittal of respondents.
4. Ms. Moxa Thakkar, learned Additional Public Prosecutor has strenuously argued that when the victim disappeared from her residence, in fact,
she was allured by respondent and was compelled to live with respondent no.2 for about two years and at the time when she left her home, she
was studying in available in the record of Village Panchayat, it was clearly established that she was minor and below 18 years and any relationship
whether she entered into with respondent no.2 either willingly or without knowing consequence would be immaterial and offences are attracted.
Date of birth of the prosecutrix was recorded and appear in the Certificate of Birth reveal that she was born on 27.3.1998 and the incident had
taken place on 13.10.2013 and she was 15 years old when the incident had taken place for which offences were registered. Thus, according to
learned APP, other facts about travelling and staying with respondent no.2 are of not much importance when the prosecutrix is proved to be below
18 years attracting offences under Sections 363, 366, 376 of Indian Penal Code and Sections 4, 6 and 8 of POCSO Act, 2012.
4.1 Learned APP would further contend that testimonies of complainant and Dr. Kishori Dhirajbhai Chotaliya, PW-2 at Exh.34, who examined
the prosecutrix for medical check up and another Dr. Dharmishtaben, PW-3 at Exh.38, and Medial Officer of Savarkundla K.K.Hospital, Dr.
Bharatbhai Chudasama, PW-4 at Exh.47, and father of the victim and the complainant, PW-13, Rasikbhai Rajyaguru all would support case of the
prosecution and learned trial Judge ought to have believed the case of the prosecution by convicting the respondents for the offences for which
they were charged and sentencing them to maximum as provided under law. Therefore, leave be granted, as prayed for.
5. We have carefully perused the judgment and order of acquittal for which leave is sought for and also xerox copies of evidence made available
by learned APP. We find that as per version of prosecutrix she left her parental home without any threat, coercion, allurement or undue influence
and decided to leave with respondent No. 2. When she left her home she travelled with respondent no.2 at various places viz. Surat, Mumbai and
Rajkot and for about two years she stayed with respondent No. 2 and also performed customary marriage by exchanging and garlanding each
other in a temple. As per the statement made by the victim under Section 164 of the Code of Criminal Procedure before the Magistrate nothing
appears on record about any involuntary or forcible relationship of prosecutrix with respondent No.2. On the contrary, affidavit executed before
Notary stated that prosecutrix and respondent no.2 had entered into matrimonial relationship on 28.3.2014 as she was having affair with
respondent no.2. At no point of time, any threat to her life was disclosed. On the contrary, prosecutrix in no clear terms stated that for about five
to six months she stayed with respondent no.2 at Mumbai and thereafter for about one and a half years at Rajkot and worked at number of
construction sites. When apprehended by the police, prosecutrix preferred to stay at Nari Saranskhan Gruh instead of opting for parental home.
Thus, all such statements of prosecutrix herself do not implicate the accused of any forcible attempt either to take out her of parental home or
entering into physical relationship forcefully.
6. While appreciating medical evidence, it is clear that prosecutrix was not over-powered or any injury on body of person was noticed. The
relationship was consensual and so was deposed even by doctors, who examined her. The fact about date of birth of prosecutrix is again under
cloud and suspicion since the prosecution has failed to prove the date of birth beyond reasonable doubt. Even we have carefully perused an extract
of register of date of birth which reveal interpolation in the first column about name of mother and person who informed about birth of prosecutrix
was also not examined. No school leaving certificate was produced about education last taken by the prosecutrix.
7. Thus, collectively the evidence so surface on record is full of lacunae and was not rightly believed by learned trial Judge, who ordered acquittal
warranting no interference in exercise of powers conferred under Section 378 read with Section 386 of the Code of Criminal Procedure. In
absence of merit, this application for leave to appeal is dismissed.