JUDGMENT : A. P. THAKER, J. 1. Being aggrieved and dissatisfied with the judgment and order of acquittal passed on 9.11.2012 by the learned Additional Sessions Judge, Court No. 12, Ahmedabad in Sessions Case No.87 of 2012, the State has preferred this Criminal Appeal under Section 378(1)(3) of the Criminal Procedure Code, 1973. 2. The brief facts of the prosecution case is that on 1.7.2011, the respondent i.e. accused had lured the daughter of complainant with an intention to commit rape on her and had taken her at different places and committed rape on her against her will and wish. It is contended that necessary complaint was lodged before the Police and Police has investigated the case and prepared panchnama and recorded the statements of various persons and thereafter necessary chargesheet came to be filed and during the investigation accused was arrested. 3. As the offence was triable by the Court of Session Judge, the learned trial Court has committed the case for trial to the Sessions Court, Ahmedabad wherein it was registered as Sessions Case No.87 of 2012. 4. The learned Additional Sessions Judge framed charge against the accused and the same was explained to the accused whereupon the accused has pleaded not guilty and pleaded for trial. Accordingly, the prosecution has examined 13 witnesses and submitted following documents as under: ORAL EVIDENCE: PW-1 Dinkar Manubhai Makwana Exh-6 PW-2 Rakesh Dineshbhai Jadhav Exh-11 PW-3 Suresh Rameshchandra Lalwani Exh-12 PW-4 Ashok Nagindas Shah Exh-16 PW-5 Ishwarbhai Laxmanbhai Hadiyal Exh-17 PW-6 Dipak Ramchandra Patni Exh-20 PW-7 Dr. Bhargav Becharbhai Zaveri Exh-25 PW-8 Omprakash Ramcharan Sharma Exh-28 PW-9 Mukesh Ambalal Makwana Exh-30 PW-10 Chaturbhai Ganeshbai Chavda Exh-33 PW-11 Manas Madhusudan Ganguly, Investigating Officer Exh-34 PW-12 Babubhai Sumabhai Prajapati Exh-42 PW-13 Suresh Hiralal Solanki Exh-46 DOCUMENTARY EVIDENCE: Panchnama of seizure of clothes of victim Exh-7 Panchnama of seizure of clothers of accused Exh-13 FIR Exh-18 Panchnama of seizure of articles for investigation from the victim Exh-21 Medical Certificate of the victim Exh-26 Medical Certificate of the accused Exh-27 FSL Letter Exh-38 FSL Report Exh-39 Serological Report received from FSL Exh-40 Xerox of School Register Exh-43 School Leaving Certificate Exh-44 Report under Section 157 Exh-47 5. After recording the evidence, the trial Court has examined the accused under Section 313 of the Criminal Procedure Code wherein also the accused has submitted that he is innocent and false case has been filed against him. 6. After recording the evidence, the trial Court has examined the accused under Section 313 of the Criminal Procedure Code wherein also the accused has submitted that he is innocent and false case has been filed against him. 6. After hearing the learned advocates for both the sides, ultimately concerned Sessions Judge has acquitted the accused from the charges levelled against him. 7. Being aggrieved and dissatisfied with the said judgment, the State has come up with this Appeal. 8. Heard Ms. Krina Calla, learned APP for the State and Mr. P.H.Buch, learned advocate who has been appointed by the High Court Legal Services Committee for the accused. Perused the material placed on record. 9. Learned APP Ms. Krina Calla has vehemently submitted that learned trial Court has committed serious error of facts and law in acquitting the accused from the charges levelled against him. It is contended by her that Dr. Bhargav Zaveri has clearly supported the case that the prosecutrix has given history of having commission of rape on her. She has also contended that there is ample evidence on record, which consist of oral and medical evidence, which shows that the prosecution has been able to prove the charge against the accused beyond reasonable doubt. 9.1 She has also vehemently submitted that though prosecution could not examine the complainant i.e. prosecutrix as her where-about could not be found by the Investigating officer, there is evidence in the form of medical evidence and the history given by the accused and the prosecutrix before the Doctors, are sufficient to connect the accused with the crime. She has also contended that even if the accused has intercourse with the consent of the prosecutrix, considering the age of the prosecutrix, such consent is not a consent in the eyes of law. She has also contended that the evidence of the Police witnesses ought to have been relied upon by the learned trial Court as they are natural witnesses and they have no axe to grind to falsely implicate the accused in the alleged offence. She has prayed to allow the present Appeal by setting aside the impugned judgment of acquittal and to convict the accused for alleged crime and award necessary punishment thereof. 10. Per contra, Mr. She has prayed to allow the present Appeal by setting aside the impugned judgment of acquittal and to convict the accused for alleged crime and award necessary punishment thereof. 10. Per contra, Mr. P.H. Buch, learned advocate for the accused has vehemently submitted that the evidence of the father of the complainant does not narrate regarding the alleged offence, rather he has stated in his evidence that his daughter has left the home voluntarily and earlier also she had left the home of the witness. Learned advocate has also submitted that even if the history of the medical evidence is believed, in that case also the prosecutrix has not named the present accused, for the rape, before the Doctor. He has also contended that considering the evidence on record, as the prosecutrix has not been examined by the prosecution as she was not found by the Police, the valuable right of cross-examining the prosecutrix has been lost and, therefore, considering the evidence on record, learned trial Court has not committed any error of law in acquitting the accused. He has submitted to dismiss the appeal. 11. It is an admitted position that in an acquittal appeal, powers of the appellate Court is very much circumscribed as held in the case of Muralidhar @ Gidda and Another v. State of Karnataka reported in (2014) 5 SCC 730 , wherein it is held as under in paragraph 12: “12..... (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court; (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal; (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and (iv) Merely because the appellate court on re-appreciation and reevaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.” 12. The Honourable Supreme Court in the case of Ghurey Lal v. State of Uttar Pradesh reported in (2008) 10 SCC 450 , has crystallized the principles to be followed by the appellate courts to overrule or otherwise disturb the trial court’s acquittal in the following manner: “70. … 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court's decision. “Very substantial and compelling reasons” exist when: (i) The trial court's conclusion with regard to the facts is palpably wrong; (ii) The trial court's decision was based on an erroneous view of law; (iii) The trial court's judgment is likely to result in “grave miscarriage of justice”; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations /report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. (vii) This list is intended to be illustrative, not exhaustive. 2. The appellate court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached one that leads to acquittal, the other to conviction the High Courts/appellate courts must rule in favour of the accused.” 13. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 14. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 15. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime with which he is charged. 15. Having considered the submissions made on behalf of both the sides and considering the material placed on record and the legal proposition and the powers of the Appellate Court in case of acquittal order passed by the trial Court, on perusal of the evidence on record, it transpires that the PW-1 Mr. Dinkar Manubhai Makwana Exh6, PW-2 Rakesh Dineshbhai Jadhav Exh-11, PW-3 Mr. Suresh Rameshchand Lalwani Exh-12, PW-4 Mr. Ashok Nagindas Shah Exh-16, PW-6 Mr. Dipakbhai Ramchandra Patni Exh-20, PW-9 Mr. Mukesh Ambalal Makwana Exh30, PW-10 Chaturbhai Ganeshbhai Chavda Exh33 are the panch witnesses have not supported the basic version of the prosecution regarding panchnama being drawn in their presence. Therefore, all of them were declared as hostile and the prosecution has cross-examined and in such cross-examination also they have not supported the versions of the prosecution regarding preparation of respective panchnama in their presence. 16. The material witness of the prosecution is the father of the victim namely Ishwarbhai Laxmanbhai Hadiyal PW-5, Exh-17. In his deposition, he has stated that his daughter was not found at the relevant date and his wife had said to him that the prosecutrix had gone to her maternal uncle's house and thereafter they searched for the prosecutrix and, therefore, had lodged the complaint before Shaherkotla Police Station and investigation thereof was initiated. He has also deposed that during such investigation the prosecutrix has expressed her desire on the mobile phone of his nephew that she wanted to come home for Rakshabandhan. He has also deposed that thereafter the prosecutrix was found from Jamalpur and she was with Dipak. 16.1 In his cross-examination, he has stated that earlier also, twice or thrice, the prosecutrix had left her home and she came back voluntarily thereafter. He has also admitted that he is not knowing the accused nor he was knowing him. He has also deposed that when prosecutrix was found, he has inquired from her. He has also stated that prosecutrix had left the home due to behaviour of himself and that of his wife. He has also admitted that he is not knowing the accused nor he was knowing him. He has also deposed that when prosecutrix was found, he has inquired from her. He has also stated that prosecutrix had left the home due to behaviour of himself and that of his wife. He has admitted that prosecutrix was found from the house of the maternal uncle and the accused has not lured the prosecutrix and he has not taken away the prosecutrix. Thus, the evidence of this witness which is a material witness, does not help in any way to the prosecution. 17. On perusal of evidence of Dr. Bhargav Becharbhai Zaveri PW-7, Exh-25, it appears that he has examined the prosecutrix who was brought by the Police Yadi and he inquired about the prosecutrix and at that time the prosecutrix has narrated that she was in love with Dipak and on 1.8.2011 they both ran away and she has married with the Dipak in presence of their friends and they were living has husband and wife and with their consent, they had sexual relationship. He has narrated that no injury marks was found on the body of the prosecutrix and her secondary sexual organs were developed and on examination of Vagina, two fingers investigation was possible and there was old rupture of the same. He has also stated that thereafter he has issued necessary certificate and prosecutrix was thereafter examined by Gynaecologist Dr. Pallavi Ninama. 17.1 He has also deposed that on the same day, the accused Dipak was brought before him for medical examination and it was found that the Cathetor was put on the body of the accused for passing where urine and his sex organ was also developed. He has also deposed that there was no injury mark on the body of the accused. According to his opinion, the accused was capable of performing intercourse. 17.2 During the cross-examination on behalf of accused, he has admitted that the prosecutrix had come with Police Yadi wherein history was already mentioned. He has also admitted that the prosecutrix was used to have intercourse. He has admitted that when accused was examined by him, he was in a paralytic condition. 18. 17.2 During the cross-examination on behalf of accused, he has admitted that the prosecutrix had come with Police Yadi wherein history was already mentioned. He has also admitted that the prosecutrix was used to have intercourse. He has admitted that when accused was examined by him, he was in a paralytic condition. 18. It appears from the evidence of Balubhai Sumabhai Prajapati, PW-12, Exh-42 that he has produced extract from the general register of Asarva Gujarati School having birth date of the prosecutrix as 1.6.1997. During his cross-examination, he has admitted that the register was of the June, 2005 to 2007 and at the relevant time, he was not serving in the said school. He has stated that the prosecutrix has studied upto Standard-VII in this School and she was admitted in the School in the Class-IV on 1.8.2002 and the birth date shown in the Register has been made from the earlier school and no birth certificate was produced in the school. Thus, the birth date certificate is not produced in this case. 19. On perusal of the evidence of Police Suresh Hiralal Solanki, PW-13, Page-46, it reveals that at the relevant time, he was PSI at Shaherkotla Police station, and at that time Ishwarbhai Laxman Hadiyal had lodged a complaint at Exh-18 before him and after recording the complaint he had handed over investigation to Mr. Ganguly. He has admitted in his cross-examination that after lodging the complaint, the complainant came thereafter and gave one number and on investigation of that, they found out accused and the prosecutrix. 20. The Investigation Officer Mr. Manas Ganguly, PW-11, Exh-34 has categorically stated that he was entrusted with the investigation of this case and accordingly he has prepared panchnama in presence of panchas and also recorded the statement of various witnesses and also collected medical evidence and arrested the accused and after having found sufficient evidence, he has filed the chargesheet. During his cross-examination he has stated that he got the investigation on 20.8.2011 and he has admitted that when the accused was arrested, he was in a paralytic condition. He has also stated that though he had received the summons to be served on the prosecutrix and even on his sincere efforts, he could not find out the prosecutrix. 21. During his cross-examination he has stated that he got the investigation on 20.8.2011 and he has admitted that when the accused was arrested, he was in a paralytic condition. He has also stated that though he had received the summons to be served on the prosecutrix and even on his sincere efforts, he could not find out the prosecutrix. 21. Considering the aforesaid evidence, it clearly appears that the complainant himself has not supported the case of the prosecution and he is not cross-examined by the prosecution. It also reveals from the evidence that the Investigating Officer could not find out the prosecutrix and the prosecution has not examined her in this case. Non-examination of the prosecutrix has vitally affected the rights of the accused. However, in view of the aforesaid evidence of the complainant, it is clearly found that the basic case of the prosecution that accused has taken away the prosecutrix from the custody of her guardian, is denied by the complainant himself. It also revealed that there is no cogent evidence regarding the birth date of the prosecutrix. The history narrated by the prosecutrix before the Medical Officer is only to the effect that she had intercourse with the accused and they were living as husband and wife. In absence of evidence of the prosecutrix, the evidence of Doctor which is in the nature of hearsay, is not sufficient to connect the accused with the crime. The evidence lead by the prosecution in this case does not inspire any confidence and the same is not sufficient and cogent to connect the accused with the alleged crime. 22. Now, on perusal of the judgment and order, it clearly transpires that learned trial Court has properly appreciated all these aspects in its proper perspective. The learned trial Court has not committed any serious error of facts and law. The impugned judgment and order is sustainable in the eyes of law and does not warrant any interference. 23. In view of the above, the present appeal deserves to be dismissed and is accordingly dismissed. The Bail bond stands cancelled. R&P should be sent back forthwith to the concerned trial Court.