J U D G M E N T

SANGITA DHINGRA SEHGAL, J (Oral)

1. By the present Leave Petition filed under Section 378 (1) of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) the State seeks leave to appeal against the judgment dated 21.08.2018 passed by the learned Additional Sessions Judge-01, Special Court (POCSO) North West District, Rohini Court, New Delhi, whereby the respondent (accused before the Trial Court) was acquitted of the charges punishable under Sections 363/376/506/511 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and Sections 8/10/12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO’).

2. The brief facts of the case, as mentioned by the learned Trial Court are reproduced as under:

“Brief facts of the prosecution case are that DD No.28A dated 25.07.2013 was recorded on a PCR call at about 8.00 p.m. regarding attempt of rape with 4 years old daughter of the caller by the neighbour. IO reached the spot where he came to know that victim has already been taken to BJRM hospital. IO reached there and collected the MLC of the victim and recorded the statement of the mother of the victim who stated that today at about 1.30 p.m. she sent her victim daughter to the shop of one Tulsi Ram to take some eatables. After some time, victim daughter returned weeping and on inquiry informed that fufaji had taken her to his jhuggi on the pretext of giving some money and there he removed her underwear and applied oil on her private part and tried to commit wrong act. When the victim started weeping, he gave her 5 rupee coin and told her not to tell about this to her mother. The victim children purchased some eatables of Rs.2/- out of Rs.5/- given by the accused and balance Rs.3/- were given to the complainant. The complainant waited for her husband who came home at about 8.00 p.m. and he was informed about the incident and then PCR was called. On her statement, present FIR was registered and accused was arrested. IO prepared the site plan and got the statement of the victim u/s 164 Cr.P.C. recorded where she stated that Om Prakash who is her fufa had removed her underwear and had applied oil at her shu shu wali jagah and also put knife on her throat and when she started crying he gave her 5 rupees and asked her not to tell her mother. IO collected the age proof of the victim and after completion of investigation, chargesheet was filed.

Copy supplied to the accused.

Charges for commission of offence punishable under Sections 363/506 IPC and Section 10 of the POCSO Act were framed against the accused on 07.02.2014 to which the accused pleaded not guilty and claimed trial.”

3. In order to bring home the guilt of the accused person, the prosecution examined 10 witnesses in all. The incriminating evidence and circumstances were put to the accused person under Section 313 of Code of Criminal Procedure wherein he pleaded to have been falsely implicated in the present case and examined three witnesses in his defence.

4. The Trial Court in the impugned judgment while acquitting respondent-accused has held as under:-

“11. Coming to the main incident, the victim has materially changed her statement as far as act of the accused is concerned while deposing in the court. In her statement given to Ld. M.M. u/s 164 Cr.P.C. Ex.PW8/B she has stated that “unhone meri kachhi utar di. Wo meri shu shu jagah par tel lagate hain Unhone mere gale par chaku lagaya. Mein jor jor se rone lagi. Fir fufaji ne mujhe 5 rupey diye aur mujhe bola ki ghar main mummy ko mat batana. Wo bahut gande hain.” (he removed my underwear. He applied oil on my shu shu. He put knife on my throat. I started crying. Then accused gave me 5 rupees and asked not to tell my mother. He is bad). However, in the statement given by victim in the court, she altogether changed the alleged act of the accused and stated that accused did wrong act after removing her underwear and his underwear. After removing underwear, he was putting