ORDER :

Mr. Ashok Kumar Jain, J. - Present leave to appeal is preferred aggrieved from order of acquittal dated 31.08.2022 in Sessions Case No.57/2021 passed by learned Special Judge (POCSO Act, Cases) No.1, Jhalawar whereby respondent-accused was acquitted from charges under Sections 3 63 , 366A, 376(2)(n), 376(3) IPC, Section 5 (l)/6 POCSO Act and Section 3 , SC/ST (POA) Act.

2. Office has pointed out a delay of 64 days in filing leave to appeal, an application under Section 5 of the Limitation Act is filed along with affidavit to substantiate the reason of delay.

3. Considered the same, for the reasons stated in the application, the same is allowed and delay is condoned.

4. Learned Public Prosecutor had submitted that the victim was minor and in the deposition recorded under Section 164 Cr.P.C., she had corroborated the story of prosecution and explained the entire incident to the Magistrate concerned. However, later on, when examined in court she had already been won over by the respondent ultimately turned hostile. He further submitted that the incident happened with victim was well corroborated from evidence of other witnesses and FSL report. He further submitted that when victim was recovered from some other place while she was in custody of accused, the fact of her kidnapping is well proved and further presence of semen clearly establishes sexual involvement with the minor, which is an offence, therefore, he submits that there are sufficient grounds for consideration before this court.

5. Heard learned Public Prosecutor and perused the case file as available with learned Public Prosecutor.

6. The fact of the matter is that on 20.09.2020, a report was registered by father of victim alleging abduction of his minor daughter by accused. On the basis of aforesaid complaint, FIR No.306/2020 was registered at Police Station Khanpur, District Jhalawar and during investigation victim was recovered on 19.12.2020 after which she was examined under Section 164 Cr.P.C. Further, her medical examination was conducted and upon concluding investigation with the arrest of accused, the charge-sheet was filed against him under Sections 3 63 , 366A and (376) (2)(n) IPC, Section 5 (l)/6 POCSO Act and Section 3 of SC/ST (POA) Act. A total number of 14 witnesses were examined by prosecution. Thereafter, accused was examined under Section 3 13 Cr.P.C. and after hearing the parties, order of acquittal was passed.

7. A perusal of memo of recovery, which was exhibited as exhibit P1 clearly indicated that this memo was prepared at Police Station Khanpur whereas PW7 Jagdish, the then ASI in his statement clearly stated that victim was recovered from Kasar, District Kota and in cross examination, it was admitted that exhibit P1 was prepared in police station and no memo was prepared when victim was recovered in Kasar, District Kota. It was further admitted by him that nowhere, it was mentioned that victim was recovered from Kasar. Aforesaid evidence clearly indicated that victim was in fact produced before police station though oral evidence of PW7 speaks otherwise. The question before us is that on what grounds, a presumption could be drawn that the victim was recovered from company of respondent-accused.

8. After recovery, she was examined by a team of medical officers and report was exhibited as exhibit P3. Two witnesses PW8 Gulshan Banno and PW13 Dr. Shiksha Mehra were examined by prosecution wherein they have clearly indicated that they did not find any visible or invisible injuries either on internal or external body of victim, the report