ORDER : ANANT S. DAVE, J. This application under Section 378(4) of the Code of Criminal Procedure, 1973 seeking special leave to prefer an appeal arising out of judgment and order dated 30.11.2015 passed by learned Additional Sessions Judge (Special) Ahmedabad (Rural) in Special POCSO CASE No. 51 of 2015, by which, the respondent herein are acquitted of offence under Section 376, 323, 506(2) and 114 of Indian Penal Code and under Sections 3 and 4 of the POCSO Act. 2. Mr. Zubin Bharda, learned advocate for the applicant has taken us to the complaint fire before Detroj Police Station which was registered as C.R No. I-18/2014 under Sections 376, 323, 506(2) and 114 of Indian Penal Code and under Sections 3 and 4 of POCSO Act dated 22.4.2014 inter alia alleging that the complainant was studying in the 12th standard in a school situated in village-Kadi and used to go to school at 7:00 a.m and accused staying at nearby house took undue advantage of her being alone started molesting and committed rape. The act was repeated often and in one or other pretext she was induced in illegal act. For the incident which took place initially on 8.2.2014, the above complaint was lodged on 22.4.2014 after 14 days and at the end of investigation charge-sheet was filed and considering the nature of special case under POCSO, it was tried by learned Additional Sessions Judge (Special) Ahmedabad Rural designated under the POCSO Act. 3. Mr. Bharda, learned advocate appearing for the applicant has taken us to the record of the case and submitted that respondent has lured the applicant under false pretext to his house and initially molested and committed rape and further threatened the applicant with dire consequences including threat to her life and under the circumstances when the victim was below 18 years having her date of birth as per school leaving certificate 19.11.1996, on the date of offence admittedly she was below 18 years. It is accordingly submitted that the fact about date of birth of the victim appears on record in the testimonies of investigating officer who confirmed the same and further delay of belatedly registering complaint after 14 days by itself cannot be a ground not to disbelieve case of the prosecution. Other aspects about scientific examination and medico legal opinion, FSL, serological etc.
Other aspects about scientific examination and medico legal opinion, FSL, serological etc. would pale into insignificance since clothes worn by the victim were sent for such examination and analysis by FSL after 15 days of the incident. Therefore, testimonies of prosecutrix is sufficient to establish guilt of the accused. Even parents of the victim who was examined have supported the case of the prosecution and opinion of medical officers though not conclusive do not rule out possibility of crime alleged. Thus, judgment and order of acquittal deserves to be quashed and set aside and atleast in the accompanying appeal on merit, the applicant has a good case and, therefore leave be granted. 4. Considering the totality of evidence emerged on record, it is submitted that in a serious offence under Section 376 duty is cast upon learned trial Judge to appreciate and analyze the evidence on record minutely and carefully and so was not done in the facts of this case and, therefore, appeal is preferred and therefore, leave is to be granted as prayed for. 5. On consideration of submissions made by learned advocate for the applicant, perusal of record of the case with judgement and order of acquittal under challenge, we find that following aspect weighed with trial Court after a careful analysis of oral as well as documentary evidence. 6. P.W.1 at Exh.9 is the victim, P.W.2 Exh.27 and P.W.3 Exh.28 are father and mother of the victim respectively while P.W.4, P.W.5 at Exh. 30 and 36 are medical officers who examined the victim and P.W.6 Exh.41 is investigating officer. Various documentary evidence came to be examined including complaint Exh.10, medical papers of treatment of the victim Exh.32, samples sent for FSL taken out of body of the victim, panchnama of seizure of clothes Exh.43, report of FSL of visit of scene of offence Exh.45 and Exh.48 FSL report. 7. So far as age of the prosecutrix is concerned, no documentary evidence was brought on the record except that version of the prosecutrix that she was borne on 19.11.1996 and further her date of birth was 1.5.1997 Neither copy of school leaving certificate nor any certificate of birth issued by local authority was produced. Simply because investigating officer has admitted such date of birth by itself would not be sufficient to bring home the charge against respondents either under Indian Penal Code or under POCSO Act.
Simply because investigating officer has admitted such date of birth by itself would not be sufficient to bring home the charge against respondents either under Indian Penal Code or under POCSO Act. The trial Court has recorded the above aspect conclusively. Further, no evidence surfaced on record even after final report of FSL is available. The testimonies of victim suffers from vice of inconsistency, discrepancies and contradictions of vital in nature, to which, learned trial Judge has addressed himself while holding that such testimonies are not trustworthy and therefore not reliable. 8. Other aspects including some complaint preferred under Section 307 by accused No. 2 etc. hardly supports case of the prosecution or defence as the same has no relevance. On the basic aspects about crime under Section 376 of Indian Penal Code and Sections 3 and 4 of POCSO Act, no material was produced much less established and proved by the prosecution before the trial Court resulting into acquittal of the respondent warranting no interference by this Court. Accordingly, we are not inclined to grant leave as prayed for. 9. Application is rejected. 10. Consequently, Criminal Appeal No. 1259 of 2016 does not survive and accordingly stands disposed of.