IMPORTANT POINT
The presumption of innocence in favor of the accused and the higher threshold required to rebut the presumption in case of acquittal.

JUDGMENT :

Bibhas Ranjan De, J.

1. This appeal impugns the judgement and order of acquittal passed on 8th Day of January, 2021 by the learned Judge in Special Case No. 39/2019 (Special Trial No. 03 of 2019 dated 08/01/2021) under Section 363, 376 of Indian Penal Code read with Section 4 and 10 of the Protection of Children from Sexual Offence, Act 2012 (in short POCSO Act).

2. In view of the offences alleged attracting the provision of POCSO Act and in view of the guidelines of the Hon’ble Apex Court governing such scenario, we will consciously avoid to divulge the particulars of the survivor, witnesses and the Police Station, hospital, other places including place of occurrence.

FACTS:

3. The facts as reflected in the judgement of the Trial Judge are as follows :

One statement of survivor (for short S) was recorded by one lady Constable on 09.11.2018 at about 7:05 hours which was treated as complaint and was registered at Police Station under specific FIR dated 09.11.2018 under Section 376 IPC read with Section 5, 6 of POCSO Act.

4. S alleged that on 22.10.2018 she was going to attend private tuition and when she reached at a place the principal accused (for short P.A) met her with an Auto Rickshaw and told the S for dropping at her destination i.e. her private tuition. S boarded the Auto Rickshaw, but the P.A took her to a place instead of dropping her to the destination. Finally the P.A took the victim to a jungle and committed sexual relationship with her. Thereafter other four (4) accused persons came over there and asked the victim to make physical relationship with them. The S refused. They took photographs of the victim who felt vertigo. Thereafter S boarded an Auto Rickshaw and went to her house. She didn’t disclose any of her family members on account of family prestige.

5. After registration of the case one S.I. of Police was entrusted with the investigation of this case. Upon completing the investigation, charge sheet was presented to the Trial Court for proceeding against the accused under Section 376 IPC read with Section 5, 6 of POCSO Act.

CHARGES

6. Learned Judge framed charge under Section 363, 376 IPC read with Section 4 of the POCSO act against the P.A and separate charge was framed under Section 10 of the POCSO Act against rest of the accused persons. All the accused pleaded not guilty to the said charges.

EVIDENCE OF THE CASE:

7. From the prosecution side nineteen witnesses were examined

they are namely:

S as PW 1,

Mother of the S as PW 2,

Father of the S as PW 3,

The neighbor as PW 4

The watchman of PHC as PW 5,

An Auto Rickshaw Driver as PW 6,

An another Auto Rickshaw Driver as PW 7,

One person as PW 8,

One person as PW 9,

Another Auto Rickshaw Driver as PW 10,

Aaya attached with PHC as PW 11,

Nursing Officer posted at PHC as PW 12,

Relative of P.A as PW 13,

Friend of S as PW 14,

Medical Officer attached to PHC as PW 15,

Lady Constable attached to PS on the relevant day, as PW 16,

Staff Nurse attached to PHC as PW 17,

Sub Inspector attached to PS at the relevant point of time, as PW 18

and;

Investigating officer, as PW 19.

8. In course of evidence a good number of documents were admitted in evidence as Ext. 1 to 21.

FINDINGS OF THE TRIAL JUDGE

9. Learned Trial Judge after evaluation of evidence could not find any evidence of kidnapping within the meaning of Section 363 IPC and also noted the delay in lodging of complain before the police. After evaluation of the medical evidence and other evidence recorded in this case the learned Judge returned his findings that there were several contradiction in the evidence of prosecution and also found the evidence of S as untrustworthy, unreliable and unbelievable. Learned Judge also pointed out laches on the part of the Investigating Officer including the identification of place of occurrence.

10. Consequent to the above discussion Trial Judge recorded an order of acquittal in respect to all accused of the charges framed in this case.

11. Mr. Deep Chaim Kabir, learned counsel appearing