The presumption of innocence in favor of the accused and the limited scope of interference in appeal against acquittal.

ORDER :

Anand Pathak, J.

1. This is an application by State seeking leave to appeal under Section 378(3) of the Code of Criminal Procedure, 1973 against the judgment dated 06-03-2020 whereby the respondents/accused namely Santosh Kushwah and Bhura alias Ramkrishna have been acquitted by the trial Court in SST No. 93/2015 for offence under Section 376(D) of IPC and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act').

2. Precisely stated facts of the case are that as per the contents of FIR on 22-04-2015 at 9:15 pm the prosecutrix (PW-4) lodged the report against accused persons to the effect that when in the night, she went to answer the call of nature then accused persons appeared on the spot, dragged her to their home, girded her limbs and committed rape over her. Later on FIR was registered and after medical examination investigation carried out and charge-sheet was filed.

3. Before the trial Court, points for consideration were age of prosecutrix as well as the allegations of rape. After considering the relevant documents and evidence in this regard, trial Court found the age of prosecutrix about 16 years and found to be a child under Section 2(d) of POCSO Act. After appreciating the evidence, trial Court acquitted the respondents/accused. Therefore, this leave to appeal has been preferred along with appeal memo so as to challenge the order of acquittal.

4. It is submission of learned counsel for the appellant/State that when girl went to answer the call of nature at that time accused persons dragged her to their home and committed rape over her. Medical report indicates commission of offence of rape. Trial Court erred in recording acquittal in favour of accused and caused illegality.

5. Heard counsel for the applicant/State and record perused.

6. In this case State is seeking is leave to appeal against the judgment of acquittal recorded in favour of respondents/accused. Testimony of two eye-witnesses namely Lakhan alias Golu (PW-1) and Bhure Singh (PW-7) go at loggerheads. Lakhan alias Golu (PW-1) witnessed the incident along with Bhure Singh (PW-7) when both were coming back from a function around 2-3 am in the night on fateful day i.e. 21-04-2015. According to Lakhan alias Golu (PW-1), removal of quilt revealed that limbs of prosecutrix (PW-4) were tied, she was without clothes and accused Bhura was in intimate position whereas testimony of Bhure Singh (PW-7) reveals that when he removed the quilt, he found both the accused Bhura as well as Santosh over the bed along with prosecutrix. It is highly surprising that two witnesses refer the presence of two persons in different numerical way. Lakhan alias Golu (PW-1) refers presence of accused Bhura whereas Bhure Singh (PW-7) refers the presence of Bhura as well as Santosh. Such dichotomy of deposition renders the case of prosecution doubtful. Interestingly, Lakhan alias Golu (PW-1) and Bhure Singh (PW-7) were not declared hostile by the prosecution, therefore, statements of both the witnesses are binding over the prosecution. In the case of Rajaram Vs. State of Rajasthan, 2005 SCC (Cri.) 1050, Apex Court has held that if a prosecution witness does not support prosecution case and is not declared hostile, statement of such witness is binding on the prosecution.

7. From the testimony of prosecution witnesses sufficient contradictions and omissions are being surfaced because the route which ought to had been taken by the eye witnesses was not the regularly used/usual route between Nateran to Vardha. Therefore, on this point also testimony of witnesses become doubtful.

8. So far as the testimony of prosecutrix (PW-4) is concerned, in her cross-examination, she accepts that she has one toilet in her house and admits that she regularly uses her toilet and she does not have any need to go out to address the call of nature. Therefore, story of prosecution indicates an improbable event because in such unearthly hours in nigh