The main legal point established in the judgment is the requirement for corroboration of the prosecutrix's testimony, the unexplained delay in filing the FIR, and the need for substantial and compelling reasons to interfere with an appeal against acquittal.

G.S. Sistani, J.

Crl. M.A. 10831/2017 (exemption)

1. Exemption allowed, subject to all just exceptions.

2. Application stands disposed of.

Crl.M.A. 10873/2017 (delay)

3. This is an application under Section 5 of the Limitation Act filed by the petitioner seeking condonation of 41 days” delay in filing the present leave to appeal.

4. Heard. For the reasons stated in the application, delay of 41 days in filing the leave to appeal is condoned.

5. The application stands disposed of.

Crl.L.P. 382/2017

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 order of acquittal dated 17.01.2017. The case of the prosecution as noticed by the Trial Court is as under:

“1. The victim, aged about 17 years was working in a hanger manufacturing factory where accused Irfan was also working. On 27.08.2014, she was on leave but had gone to the said factory to provide lunch to her brother Rubel, who was also working in the same factory. While she was returning back after giving lunch and reached at the Pushta Road, Irfan met her there on a bike and offered to talk to her and further offered to marry her and on that pretext, he took her on his bike to 5th Pushta where they both got down and walked towards the Yamuna river for about 2-3 kilometers towards a jungle. While they were talking, suddenly four boys came out of the bushes out of which one was Farukh, brother of accused Irfan and three were unknown boys out of whom one was having his fact covered with a handkerchief. One of the boys placed a knife at the neck of the victim and then all five of them committed rape with the victim turn by turn. They also threatened her not to disclose their acts to anyone or else she would be killed. Accused Irfan then dropped her at Loni on his own motorcycle near the house of her sister. The victim did not tell anyone about the incident out of fear but when he started harassing and threatening her and refused to marry her, she disclosed about the incident to her sister Sultana. Thereafter, the victim alongwith her sister Sultana and her cousin Rajia Begum approached the police at PS New Usmanpur and the victim lodged her complaint on which the present FIR was registered for the offences punishable under Section 376-D/506 IPC and 6/10 POCSO Act. The victim was subjected to medical examination. She was also produced before the Ld. MM where her statement under Section 164 Cr.PC was recorded. Only accused Irfan was arrested and the other accused/offenders could not be arrested due to lack of particulars including Farukh. After completion of investigation, chargesheet was filed against accused Irfan for the said offences.”

7. Charges were framed against the accused/respondent for the offences punishable under Section 376-D of the Indian Penal Code, 1860 (“IPC”) and alternatively for offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and also under Section 506/34 IPC, to which he pleaded not guilty and claimed trial. To bring home the guilt of the accused, the State examined 10 witnesses. No evidence was led by the defence. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure.

8. Learned counsel for the State submits that the Trial Court has based the judgment on surmises and conjectures and acquitted the accused without taking into consideration that the prosecution has been able to prove its case beyond any shadow of doubt. Ms. Kolluru further contends that since the victim was a minor, her consent would be meaningless and the learned Trial Court has failed to take into account the presumption of law as per Section 29 of POCSO Act and Section 114-A of the Indian Evidence Act, 1872 in cases of gang rape. Learned counsel submits that the Trial Court has failed to appreciate that gang rape was committed on the victim by the five persons including the accused/respondent Irfan. She was threatene