G.S. Sistani, J.

Crl.M.A. 11278/2017 (Exemption)

1. Exemption allowed, subject to all just exceptions.

2. Application is disposed of.

Crl.M.A. 11277/2017 (Delay)

3. This is an application under Section 5 of the Limitation Act filed by the appellant seeking condonation of 117 days” delay in filing the present leave to appeal.

4. Although there is no reason to condone the delay, but since we have heard the matter on merits, the delay is condoned.

5. The application stands disposed of.

CRL.L.P. 393/2017

6. The present leave to appeal has been filed by the State under Section 378(1) of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) against the judgment dated 21.12.2016 passed by the Additional Sessions Judge (“Trial Court”) in SC 55994/2016 (old SC 130/2013) arising out of FIR 105/2013 registered at Khyala Police Station, whereby the accused/respondent herein stands acquitted of the charge under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).

7. The case of the prosecution as noticed by the Trial Court is as under:

“1. Brief facts of the case are that the in the case in hand, FIR has been lodged on the statement of Ms. 'S' (presumed name of the complainant) who is maternal grand mother of the prosecutrix “C” (presumed name), who is about 9 years of age. Wherein, she has alleged that prosecutrix “C” who is daughter of her daughter lives with her and on dated 21.03.2013 prosecutrix 'C' has told her that two days before the said date i.e. 21.03.2013, when, she was playing in the street alongwith her friend, who is about the 13 years of age, then one man, who resides in house i.e. A238, Raghubir Nagar, Delhi had taken both girls/prosecutrixes in his house and bolted the door of the room from inside and he asked the prosecutrixes to remove their clothes and removed his clothes, juxtaposed his body with the prosecutrixes and laid with them, kissed them and then, after giving Rs. 10/to each prosecutrix, he asked them to not tell any person and she has further stated that on dated 21.03.2013, when, she saw the money with the prosecutrix 'C' she suspected, then the prosecutrix 'C' who is maternal grand daughter of the complainant had told that accused Kishan Lal had done GALAT HARKAT with both the prosecutrixes and prayed for taking legal action. On the basis of such statement of the complainant, FIR No. 105/13, U/S 376 of IPC and 4 POCSO Act was registered on dated 21.03.2013 and the accused Kishan Lal was arrested on dated 22.03.2013 and since then he is behind barrs [sic: bars].”

8. On completion of the investigation, the chargesheet was filed under Section 376 of the Indian Penal Code, 1860 (“IPC”) and Sections 4 and 6 of the POCSO Act. Charges were framed by the Trial Court under Section 6 of the POCSO Act to which the accused/respondent pleaded not guilty. To prove the guilt of the respondent, the prosecution examined 14 witnesses.

9. The incriminating circumstances were put to the accused/respondent under Section 313 Cr.P.C., wherein he took the plea that he had been falsely implicated in the case and stated that he was not present on the date of the incident as he was out of Delhi from 18.03.2013 to 20.03.2013. Defence examined one witness, i.e. Kanhaiya (DW-1) being the brother of the respondent.

10. After analyzing the evidence before it, the Trial Court found material contradictions, inconsistencies and improvements in the statements of the two prosecutrixes (PW-3 and PW-6) and PW-5 (maternal grandfather of PW-6) and unexplained delay of 2 days in lodging of FIR raising suspicion on the version of the prosecution and extended the benefit of doubt to the respondent. Aggrieved, the State has filed the present leave to appeal.

11. Mr.Kundu, learned counsel for the State, contended that the judgment of the Trial Court is based on surmises and conjectures and not on the correct appreciation of evidence, therefore, the impugned judgment deserves to be set-aside. It is submitted that the contradiction