JUDGMENT : J.B. Pardiwala, J. 1. As both the captioned appeals arise from a selfsame judgment passed by the Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals, Godhra in the Special (POCSO) Case No.14 of 2016, those were heard analogously and are being disposed of by this common judgment and order. 2. The captioned criminal appeals are at the instance of two convicts of the offence of rape and are directed against the judgment and order of conviction and sentence passed by the Special Judge (POCSO) & 2nd Addl. Sessions Judge, Panchmahals at Godhra dated 20th April, 2017 in the Special (POCSO) Case No.14 of 2016, by which, both the appellants came to be convicted by the Special Court for the offences punishable under sections 376(d), 506(2) read with 114 of the Indian Penal Code and section 4 of the Protection of Children from Sexual Offences Act, 2012 ( for short “the POCSO”). Both the appellants have been sentenced to undergo 20 years of rigorous imprisonment for the offence punishable under section 376(d) read with section 114 of the Indian Penal Code with fine of Rs.10,000/- and in default of the payment of fine, to undergo further six months of simple imprisonment. The appellants came to be sentenced to undergo two years of rigorous imprisonment for the offence punishable under sections 506(2) read with section 114 of the IPC with fine of Rs.500/- and in default of the payment of fine, to undergo further simple imprisonment for a period of one month. The appellants have been sentenced to undergo seven years of rigorous imprisonment with fine of Rs.5000/- for the offence punishable under section 4 of the POCSO Act and in default of the payment of the amount of fine, to undergo further simple imprisonment for a period of three months. The appellants, however, came to be acquitted by the Trial Court of the offence punishable under section 6 of the POCSO. The Trial Court directed that the sentences shall run concurrently. 3. We take notice of the fact that, in all, three accused including the two appellants herein were put on trial for the offences enumerated above. The original accused No.3, namely, Sanjaybhai Anopbhai Damor came to be acquitted by the Trial Court of all the charges. 4. The Trial Court directed that the sentences shall run concurrently. 3. We take notice of the fact that, in all, three accused including the two appellants herein were put on trial for the offences enumerated above. The original accused No.3, namely, Sanjaybhai Anopbhai Damor came to be acquitted by the Trial Court of all the charges. 4. Case of the prosecution: 4.1 The mother of the victim, P.W. 2-Kaliben Bharatbhai Taviyad lodged the first information report, Exh.21 dated 20th December, 2015 at the Morva Police Station, inter alia, stating as under: “My name is Kaliben W/O Bharatbhai Salabhai Taviyad, Aged: 37 years, Occupation: House wife, Residing at: Rajayata, Navi Vasahat, Moti Kyar, Ta- Morva(Ha) Upon being personally present, I hereby state the fact of my complaint that I have been residing with my family at the above mentioned address and do the household work. I have one son and two daughters. Of which, the eldest daughter is Jasodaben then the son Hemanshukumar and the youngest daughter is XXXXX aged: 16 years. My three children are unmarried. My daughter XXXXX was admitted in Pichhoda primary school in standard-9 and she used to attend the school from the home. She appeared in the Board examination of 10th standard last year. As the result of standard-10th was declared, my daughter Jalpeben failed in three subjects. Therefore, she remained home and did the household work. As my sister in law Maniben Zaverbhai Nathabhai Garasiya's daugher Rekhaben W/O Dharmendrabha Vechatbhai Bhamat, residing at: Panchamuvadi, Ta-Santrampur, Dist-Panchamahal had been serving at Kajada-Javahar Navodaya Vidayalaya, Ta- Surajgadh, Dist: Zujanu(Rajasthan), my daughter XXXXX went to Rajasthan two months ago to make preparation of the subjects in which she failed in standard-10th. On 28/10/2015, nephew Anilbhai Zaverbhai Garasiya residing at: Ukhareli informed me on phone that, he received phone of Rekha from Rajasthan and she informed that XXXXX had a normal delivery in the room and she gave birth to a boy child. That child was thrown out of the compound wall of the school. Therefore, I knew this. Thereafter, I and my nephew in law Dharmendrabhai Vechatbhai Bhamat residing at: Panchamuvadi, Ta-Santarampur, Dist: Mahisagar and Anilbhai Zaverbhai Garasiya, residing at: Ukhareli, Ta- Santarampur, Dist: Mahisagar left from there in the late night and reached at Kajada(Rajasthan) on the next day morning at the house of Rekhaben. At that time, Rekhaben and XXXXX met us on the room. Thereafter, I and my nephew in law Dharmendrabhai Vechatbhai Bhamat residing at: Panchamuvadi, Ta-Santarampur, Dist: Mahisagar and Anilbhai Zaverbhai Garasiya, residing at: Ukhareli, Ta- Santarampur, Dist: Mahisagar left from there in the late night and reached at Kajada(Rajasthan) on the next day morning at the house of Rekhaben. At that time, Rekhaben and XXXXX met us on the room. I came to know from Rekhaben that, XXXXX has given birth to a boy child and left the child out of the compound wall. As police came to know about this, police has taken actions. During this time, Police also arrived there on the room and inquired Rekhaben and XXXXX. I also went with the police. Police inquired me there. Thereafter, on the next day, XXXXX was sent to the Hospital for the treatment. She was given treatment in the hospital for two to three days. As she was discharged from the hospital, we came on the room. Thereafter, the police called XXXXX and produced her before the court. Thereafter, she was sent to the remand home for four to five days. Thereafter, my daughter XXXXX was released on bail and we took XXXXX home. During this time, as we asked our daughter XXXXX, she stated that, before nine months, I was at home. As the motor was to be installed in our well near our home at about eight o'clock in the evening, I went to the well to see the motor. At that time, Damor Sanjaybhai Anopbhai Nano of our village came at the well to take water. He told me to take the water pot at his home. As he told so, I took the pot and put the pot at the support of the fence near his house. When I was returning from there, Vajesing Dalpat Damor and Ajitkumar Kumarsinh Bhagora of our village who had hidden around that place, came to me and Ajit caught my hand and made me fell down. Thereafter, Vajesinh Dalpat Damor pressed my mouth. Ajit removed my pent and under wear. Ajit mounted on me and committed rape. Thereafter, Ajit kept my mouth pressed and told Vajesing that now it is your turn. Therefore, Vajesinh Dalpat Damor mounted on me and committed rape. They told me that, if you tell about this to anyone at your home, we shall kill your parents. They threatened me so and I became almost unconscious. Ajit mounted on me and committed rape. Thereafter, Ajit kept my mouth pressed and told Vajesing that now it is your turn. Therefore, Vajesinh Dalpat Damor mounted on me and committed rape. They told me that, if you tell about this to anyone at your home, we shall kill your parents. They threatened me so and I became almost unconscious. Thereafter, they left me there and fled. Thereafter, I put on the clothes and came home. As I was threatened, I did not tell the incident to anyone. Such fact was told by her. Thereafter, the members of my family came to know this fact. The leader of my village Galapbhai Chunabhai Taviyad and Champakbhai Nathabhai Taviyad were sent to the home of Vajesinh Dalpat Damor, Ajitkumar Kumarsinh Bhagora and Damor Sanjaybhai Anopbhai to inquire about the incident but they did not state anything. Sanjaybhai Anopbhai Damor of our village had sent my daughter XXXXX aged: 16 years to the fence side from the well under the pretext of putting the water pot and Vajesinh Dalpat Damor and Ajitkumar Kumarsinh Bhagora had caught my daughter XXXXX and made her fallen down and committed rape on her one after another and threatened her to kill. As my daughter XXXXX became pregnant by this incident, she gave birth to a boy child on 28/10/2015 at Kajada village in Rajasthan. Therefore, I have come here alongwith my daughter XXXXX and my nephew Anilbhai Zaverbhai Garasiya residing at: Ukhareli, Ta-Santarampur, Dist:Mahisagar and Kesharabhai Ramjibhai Taviyad of our village to make complain. Hence, it is my complaint to make legal investigation. I hereby produce the certificate of Moti Kyar Primary School in Rajayata in which my daughter XXXXX had studied. As per this certificate, birth date of XXXXX is 04/05/1999. I make my complaint in presence of Simaben Gokuldas Shah of Anandi Institute and Jivikaben Shiv. My witnesses and evidence are the persons mentioned in my complaint and the persons who will reveal in the investigation. The above is the fact of the complaint.” 4.2 Thus, it is the case of the prosecution that before about ten months from the date of the filing of the complaint, at around 8:00 Clock in the late evening, the victim, aged 16, residing at village Rajayta, Taluka: Morva, District: Panchmahals had gone to watch the electric motor which was installed on the well situated near her house. At that point of time, the original accused No.3 (acquitted) came at the well to fetch the water. The original accused No.3 asked the victim to fetch a pot of water and deliver it at his house. The victim carried the pot of water, and after putting the pot at the house of the original accused No.3, was returning back to her house and at that point of time, according to the case of the prosecution, the appellants herein were hiding themselves. The two appellants are alleged to have, all of a sudden, caught hold of the victim. One of the appellants herein is alleged to have caught hold of the hand of the victim and made her fall down. The another appellant is alleged to have gagged the mouth of the victim. The two appellants herein are alleged to have, thereafter, committed rape on the victim one after another. After the incident, the victim is said to have returned to her home. She did not disclosed about the incident to anyone. According to the case of the prosecution, the act of rape alleged to have been committed by the two appellants impregnated the victim. The victim kept absolutely quite for a period of almost seven months. It appears from the case of the prosecution that the victim went to Rajasthan at the house of her cousin sister, PW 9-Rekhaben. While she was at Rajasthan, she delivered the baby and later surreptitiously abandoned the baby in one school premises. The abandoned infant was spotted by few people and they, in turn, informed the police. The police conducted an inquiry and ultimately the inquiry revealed that it is the victim who had delivered the baby and had abandoned her in the school compound. According to the case of the prosecution, the victim, for the first time, revealed that she had conceived on account of the rape alleged to have been committed upon her by the two appellants nine months back. This is how the PW 9-Rekhaben, at whose house the victim was residing at Rajasthan past two months, came to know that the victim was pregnant and she delivered the baby. Later, the parents of the victim also came to know about the child being delivered by the victim at Rajasthan. This is how the PW 9-Rekhaben, at whose house the victim was residing at Rajasthan past two months, came to know that the victim was pregnant and she delivered the baby. Later, the parents of the victim also came to know about the child being delivered by the victim at Rajasthan. 4.3 It appears that the village Panchayat was assembled to probe into the entire episode, and in the meeting convened by the members of the village Panchayat, the accused persons were also confronted. They were confronted as regards the accusations and they denied such accusation outright before the village Panchayat. 4.4 Upon registration of the first information report, the investigation had commenced. The accused persons were arrested. The accused persons were subjected to medical examination. The Panchnama of the place of occurrence, Exh.33, was drawn. The victim was also sent for the medical examination at the Community Health Center, Morva. The clothes said to have been worn by the victim at the time of the incident were collected by drawing the Panchnama, Exh.37 in the presence of the Panch witnesses. The clothes said to have been worn by the appellants herein at the time of the commission of the offence, Exh.40, were collected in the presence of the Panch witnesses. The blood samples of both the appellants were drawn and collected for the purpose of the DNA test. The blood sample of the infant was also drawn and collected for the purpose of the DNA test. The articles collected by the Investigating Officer in the course of the investigation were sent for chemical analysis to the FSL. The DNA testing was undertaken and the report of the test revealed that none of the two appellants herein are the biological father of the child delivered by the victim. The statements of various other witnesses were recorded. At the end of the investigation, charge-sheet was filed and the filing of the charge-sheet in the Special Court, ultimately, culminated in the Special (POCSO) Case No.14 of 2016. 4.5 The Special Court, vide order dated 23rd May, 2016, Exh.6 proceeded to frame the charge against the appellants herein. The statements of various other witnesses were recorded. At the end of the investigation, charge-sheet was filed and the filing of the charge-sheet in the Special Court, ultimately, culminated in the Special (POCSO) Case No.14 of 2016. 4.5 The Special Court, vide order dated 23rd May, 2016, Exh.6 proceeded to frame the charge against the appellants herein. The charge reads thus: “I, K.J. Dasondi, Additional Sessions Judge and Special Judge (POCSO), Panchmahals at Godhra, frame the charge against you, accused (1) Ajitkumar Kumarsinh Bhagora, aged 20 years (2) Vajesing Dalapbhai Damor, aged 31 years (3) Sanjaybhai Anopbhai Damor, aged 28 years, all residing at Rajayta, Taluka Morva (Hadaf), District Panchmahals, that, (1) In this case, at about eight o'clock in the evening, ten months before 20/12/2015, the victim, being daughter of the complainant, aged about 16 years, residing at Moje village Rajayta was going to see the motor installed at the well situated near her house. At that time, you accused No. 3 had come to the said well for fetching the water and you told her that “take the water pot to my house”. As you told such, the victim took the water pot and she was returning after putting the water pot at the support of the fence at a nearby place. At that time, you accused Nos. 1 and 2 were hiding at a nearby place and then, you came near the victim and you accused No. 1 caught hold of her hand and made her to fall down and you accused No. 2 pressed her mouth, made her to fall down, removed the clothes worn by her, threatened to kill her and, thereby, both of you accused Nos. 1 and 2 one by one committed sexual intercourse against her consent and you accused No. 3 abetted in doing so. Due to this reason, the victim became pregnant and on 28/10/2015, she gave birth to a child at Kajada village of Rajasthan. In this way, you the accused persons have, in collusion with one another, committed an offence as per Sections 376(D), 506(2) read with Section- 114 of the Indian Penal Code, within the jurisdiction of this Court. Due to this reason, the victim became pregnant and on 28/10/2015, she gave birth to a child at Kajada village of Rajasthan. In this way, you the accused persons have, in collusion with one another, committed an offence as per Sections 376(D), 506(2) read with Section- 114 of the Indian Penal Code, within the jurisdiction of this Court. (2) At the above-mentioned date, time and place, you accused persons committed rape and penetrative sexual assault and sexual exploitation on the victim aged 16 years, being minor daughter of the complainant, against her will, despite knowing her to be a minor and, thereby, you have committed an offence punishable under Sections 4, 6, 17 of the Protection of Children from Sexual Offences Act, 2012, within the jurisdiction of this Court. (3) Hence, I hereby order to conduct trial of the offences under Sections 376(D), 506(2), 114 of the Indian Penal Code and Sections 4, 6, 17 of the Protection of Children from Sexual Offences Act, 2012 against you accused persons in this Court, as this Court has jurisdiction and this Court is competent to try all the above offence.” 4.6 The prosecution, in the course of the trial, led the following oral evidence:- Sr. No. Detail - Exh. 1. Victim Victim 16 2. Kaliben Bharatsinh Taviyad Complainant 20 3. Bharatbhai Salabhai Taviyad Witness 22 4. Anilkumar Zaverbhai Garasiya Witness 23 5. Dr. Sudeep Harishankar Sharma Medical Officer 25 6. Dr. Kalpesh Punjabhai Machhar Medical Officer 27 7. Gulabsinh Sunabhai Witness 32 8. Motibhai Ramjibhai Taviyad Panch witness 39 9. Rekhaben Dharmendrakumar Bhamat Witness 47 10. Dharmendrakumar Vechatbhai Bhamat Witness 48 11. Laxmansinh Manjibhai Taviyad Witness 49 12. Dr. Nandlal Bhuraram Disaniya Medical Officer 61 13. Bhikhabhai Kanabhai Bharwad Investigating Officer 64 4.7 The prosecution led the following pieces of the documentary evidence: Sr. No. Detail Exh. 1. Complaint 21 2. Medical certificate of the victim 26 3. Medical examination report of the victim issued by the Community Health Center, Mora 28 4. Yadi sent to the Medical Officer, Mora for the purpose of medical examination of the accused. 29 5. MLC certificate of the accused, namely, Ajirkumar issued by the C.H.C., Mora 30 6. MLC certificate of the accused, namely, Vajesinh issued by the C.H.C., Mora 31 7. Panchnama of the scene of offence 33 8. Yadi sent to the Medical Officer, Mora for the purpose of medical examination of the accused. 29 5. MLC certificate of the accused, namely, Ajirkumar issued by the C.H.C., Mora 30 6. MLC certificate of the accused, namely, Vajesinh issued by the C.H.C., Mora 31 7. Panchnama of the scene of offence 33 8. Panchnama drawn for collection of the clothes worn by the victim at the time of the incident 37 9. Panchnama drawn for collection of the clothes worn by the accused at the time of the incident. 40 10. A copy of the certificate showing the date of birth of the victim issued by the Rajayta Primary School. 50 11. Forwarding letter sent for the purpose of obtaining the blood sample of the child 56 12. Letter as regards obtaining the blood sample of the child 57 13. Letter sent by the PSI of the Morva Police Station for obtaining the blood sample of the child 58 14. Forwarding letter issued by the Deputy Director, Surat. 59 15. Report of the DNA Department 60 16. List 65 17. Forwarding letter sent to the FSL, Vadodara for testing of the Muddamal, remark of sending of Muddamal and the authority certificate 66 18. Receipt of receiving the Muddamal by the FSL, Vadodara 67 19. Forwarding letter sent to the FSL, Surat for testing of the Muddamal, remark of sending of Muddamal and the authority certificate 68 20. Receipt of receiving the Muddamal by the FSL, Surat 69 21. Forwarding letter sent to the FSL, Surat for testing of the Muddamal, remark of sending of Muddamal and the authority certificate 70 22. Receipt of receiving the Muddamal by the FSL, Surat 71 23. Forwarding letter issued by the Deputy Director, Surat to the CPI, Godhra 72 24. Report of the DNA Department 73 25. Forwarding letter issued by the Deputy Director, Vadodara to the CPI, Godhra 75 26. FSL report 76 27. Report of the Serology 77 4.8 The statement of the appellants under section 313 of the Cr. P.C. were recorded, in which, both the appellants stated that they were innocent and a false case had been instituted against them on account of enmity with the family of the victim. 5. Submissions on behalf of the appellants : 5.1 Mr. Report of the Serology 77 4.8 The statement of the appellants under section 313 of the Cr. P.C. were recorded, in which, both the appellants stated that they were innocent and a false case had been instituted against them on account of enmity with the family of the victim. 5. Submissions on behalf of the appellants : 5.1 Mr. Barot, the learned counsel appearing for the appellant of the Criminal Appeal No.1110 of 2017 vehemently submitted that the Trial Court committed a serious error in holding his client guilty of the offences charged with. Mr. Barot submitted that it is true that the evidence of the prosecutrix is to be construed to be that of an injured witness so much so that no corroboration is necessary but the same would hold good if the evidence of the prosecutrix is found to be absolutely true, trustworthy, reliable and inspiring total confidence. He would submit that if the evidence of the prosecutrix is found to be shaky or not, at all, inspiring any confidence, then, in such circumstances, the Court may insist for corroboration in material particulars. He would submit that the testimony of the victim in cases of sexual assault though commands great weight, but the same cannot necessarily be universally and mechanically accepted to be as a gospel truth in any circumstances. Mr. Barot laid much emphasis on the fact that the first information report came to be lodged almost after a period of nine months from the date of the incident. He would submit that in cases like the one on hand, where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, more particularly, when the prosecutrix could venture to wait for almost nine months for filing the first information report for rape. Mr. Barot would submit that the delay of nine months in the present case left the accused persons totally defenceless. He submitted that had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. Mr. He submitted that had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. Mr. Barot submitted that as the prosecutrix conceived and delivered a baby, the DNA test was also conducted to find out whether the child was born out of the said incident of rape and that the accused persons herein were responsible for the said child. It is pointed out by Mr. Barot that the DNA test conducted reveals that none of the two accused herein before this Court are the biological father of the child delivered by the victim. According to Mr. Barot, the same is suggestive of the fact that the prosecutrix did not get impregnated on account of the act of rape alleged to have been committed by the appellants. Mr. Barot submitted that the Trial Court, in its judgment, in para- 27, has discussed the DNA test report. According to Mr. Barot, the findings recorded by the Trial Judge in para-27 could be termed as quite erroneous. Mr. Barot submitted that the reasons assigned by the Trial Judge, as contained in para-27 of the judgment, gives an indication that the Trial Court had, in its mind, that the pregnancy had nothing to do with the act of rape. To put it in other words, the reasoning gives an impression that what was in the mind of the Trial Court was that the prosecutrix might be pregnant through some another person at the time when the act of rape, as alleged, was committed and that could be the reason why the DNA test is negative. According to Mr. Barot such line of reasoning is something contrary to the case of the prosecution or rather something contrary to what has been stated in the charge framed by the Trial Court against the appellants. 5.2 Mr. Barot next submitted that the Trial Court committed a serious error in convicting the appellants by drawing presumption under section 29 of the Act of having committed the offence under section 3 of the POCSO punishable under section 4 of the POCSO. Mr. 5.2 Mr. Barot next submitted that the Trial Court committed a serious error in convicting the appellants by drawing presumption under section 29 of the Act of having committed the offence under section 3 of the POCSO punishable under section 4 of the POCSO. Mr. Barot submitted that for the purpose of drawing presumption as envisaged under section 29 of the POCSO Act, the prosecution is obliged to lay the foundational facts, prima facie, establishing the commission of the offence. He would submit that the statutory presumption has been understand by the Trial Court to mean that the prosecution version is to be treated as a gospel truth in every case. He would submit that if the evidence of the prosecutrix otherwise, by itself, is not reliable and trustworthy, then there is no question of drawing any presumption under section 29 of the POSCO Act. Mr. Barot submitted that there is no way, in which, the prosecution can ignore the DNA test report. The same has been accepted by the prosecution. If the Public Prosecutor, in the Trial Court, had any doubts as regards the contents of the DNA test report or the authenticity of such a report, then he could have examined any expert witness in this regard. No such expert witness has been examined to confront him with the DNA test report. He submitted that over a period of time, the science of DNA, by and large, is now perfect. In such circumstances, referred to above, Mr. Barot, the learned counsel prays that there being merit in his appeal, the same be allowed and the judgment and order of conviction and sentence be quashed and set aside. 6. Mr. A.A. Zabuwala, the learned counsel appearing for the appellant of the Criminal Appeal No.845 of 2017 has, by an large, adopted all the submissions canvassed by Mr. Barot. Mr. Zabuwala has nothing more to add. 7. Submissions on behalf of the State: 7.1 Mr. Patel, the learned APP appearing for the State has vehemently opposed both the appeals. Mr. Patel made a gallant effort to convince this Court that the judgment and order of conviction passed by the Trial Court deserves to be affirmed. Mr. Patel submitted that the prosecution should not fail merely because there was a delay in lodging the first information report. According to Mr. Patel, the victim hails from a poor strata of the society. Patel made a gallant effort to convince this Court that the judgment and order of conviction passed by the Trial Court deserves to be affirmed. Mr. Patel submitted that the prosecution should not fail merely because there was a delay in lodging the first information report. According to Mr. Patel, the victim hails from a poor strata of the society. It is submitted that the victim might not have mustered the courage of disclosing about the incident to her parents or any other person, and this could be for number of reasons. Mr. Patel would submit that there was no good reason for the prosecutrix to point her finger towards the accused persons as the culprits. He submitted that the oral evidence of the prosecutrix is quite natural and deserves to be accepted without entertaining any doubt. He would submit that the accused are not entitled to acquittal only on the strength of the DNA test report, which exonerates them. He submitted that once the foundational facts are laid, a presumption would arise under section 29 of the POCSO Act that the accused committed the crime. Mr. Patel submitted that the word used in section 29 of the POCSO Act is “shall”. It is suggestive of the fact that there is a mandate of the statute that the Court must presume that the accused committed the crime unless any evidence irrebuttable of the same is led by the accused. Mr. Patel submitted that no evidence worth the name has been led by the accused to rebut the presumption under section 29 of the POCSO Act. Mr. Patel also laid much emphasis on the fact that the case on hand is one of gang rape. He submitted that the third accused might have been acquitted by the Trial Court, but that by itself, would not be sufficient to raise a doubt as regards the complicity of the appellants herein in the crime. In such circumstances, referred to above, Mr. Patel, the learned APP, prays that there being no merit in both the appeals, those be dismissed and the judgment and order of conviction passed by the Trial Court may be affirmed. 8. Before adverting to the rival submissions canvassed on either side, we propose to look into the oral evidence on record. The prosecution has examined the victim, PW 1, Exh.16. 8. Before adverting to the rival submissions canvassed on either side, we propose to look into the oral evidence on record. The prosecution has examined the victim, PW 1, Exh.16. As the entire case hinges on the evidence of the victim, we deem fit to reproduce the same as under: “(2) My parents are doing the agricultural work. I was doing my household chores. I do not remember the date of the incident. The incident took place at the time of Board examinations. My father installed the electric motor pump for irrigation at the farm. He came home keeping the pump on. He was taking rest. As the irrigation water was running in the farm, I went to switch the electric motor pump off at around eight o'clock. I went to the farm alone. When I went to the well, Sanjay Damor of our village came to fetch water at our well. After filling the water pot, he told me to take that pot to his home. Therefore, when I was returning after delivering the pot at his home, Vajesinh Dalpatbhai Damor and Ajeetkumarsinh Bhagora of our village came. They held me near the embankment of our farm. Vajesinh fell me down and Ajeet gagged my mouth. Ajeet removed my pent and shirt and Vajesing committed rape. Vajesing removed his underwear and he also removed my underwear and he committed rape. I shouted to save me, but they did not save me. After committing rape, Vajesing told Ajeet that now it is your turn. Thereafter, he gagged my mouth and mounted upon me and committed rape forcefully. After getting up, they intimidated me that, if you tell anyone, we will kill your parents. At that time, I was partially unconscious. Thereafter, they left the farm. Thereafter, when I stood up after being conscious, my vagina was bleeding. Therefore, I put on my clothes and went home. All those three threatened me and therefore I was frightened. Therefore, I did not inform about the incident to anyone. (3) After eight months of the incident, my parents sent me to the place of my aunt's daughter Rekha, who is a teacher in Kajara Navodaya Vidhyalay, Rajsthan, to take care of her younger daughter and to prepare for the three subjects in which I had failed. Therefore, I did not inform about the incident to anyone. (3) After eight months of the incident, my parents sent me to the place of my aunt's daughter Rekha, who is a teacher in Kajara Navodaya Vidhyalay, Rajsthan, to take care of her younger daughter and to prepare for the three subjects in which I had failed. When I was at my sister's place, I felt a sudden stomach ache and thereafter, I went to toilet where I gave birth to a child. I was frightened and therefore, I took this child and kept it outside the court. Thereafter, I came back to home and slept. I did not inform Rekha about it. On the next day, the people of the village admitted this child in the hospital. I fell sick. I did not inform anyone about the incident. Thereafter, when I told Rekha, she informed the police. I stated to the police that this child is mine. I was admitted to the hospital as I was sick. Police sent me to the juvenile home. I stayed there for about three to four days. My parents got me released on bail. I told my mother about the incident after she got me released. After informing about the incident, we came to our village. Thereafter, my parents informed about it to the Pancha, but the said boys stated before the Pancha that they had not done any such things. Thereafter, my mother lodged a complaint in the Morva police station. The police recorded my statement after my mother lodged the complaint. I was taken to a hospital for my medical examination with my consent after the complaint was lodged by my mother. I had been examined by a doctor. My child is in a hospital at Rajasthan. I showed the place of the offence to the police and the police drew a panchnama in presence of the pancha. I had kept the clothes in my home which I had worn at the time the incident. I gave those clothes to the police. I gave to the police a pent, shirt and an underwear. I can identify those clothes if they are shown to me. Note : As the permission is sought by the public prosecutor to identify the sealed clothes of the victim, the same is granted. I am shown muddamal article no-7 which is not my blue coloured jeans pent. I gave to the police a pent, shirt and an underwear. I can identify those clothes if they are shown to me. Note : As the permission is sought by the public prosecutor to identify the sealed clothes of the victim, the same is granted. I am shown muddamal article no-7 which is not my blue coloured jeans pent. As there is a mistake in muddamal article no – 7, the public prosecutor seeks permission to show the muddamal article no – 4. Therefore, when the muddamal article no – 4, which bears a slip mentioning that muddamal article no – 4 is seized from the accused Vajesing Dalpatsinh Damor in the presence of the pancha, is shown to the victim, she identifies muddamal article no – 4 as her blue jeans pent. When article no – 8, which is a half sleeved top with lining and article – 9, which is a light yellow underwear worn by the victim at the time of the incident, are shown to her, she identifies them as the same which were handed over to the police. The police took me to the officer for an inquiry in the court. The officer questioned me there and I gave statement and he recorded it. Note : As the public prosecutor submits an application to bring the statement of the victim, which was given before the J.M.F.C u/s 164 of CrPC and which is in the custody of the Nazir of the court, the application has been granted. When the sealed cover is produced by Nazir of Godhara, Mr. Pandya along with the register, it is written on it The statement of the victim u/s 164 of CrPC in the offence of Morva (H) Police Station, I – CR No – 89/15. This sealed cover has been opened in the presence of the public prosecutor Ms. L.R. Sheth and the defense advocate Mr. S.N. Chavda. A copy of complaint, a letter of the investigation officer and a sealed cover have been found from this cover and the said sealed cover has been opened in the court. (6) I dictated the facts of the incident to the J.M.F.C Morva (H). After writing it, my signature was obtained in her presence. I am shown that statement. It bears my signature. As it has been identified by the witness, the statement u/s 164 of CrPC has been assigned Exhibit-18. (6) I dictated the facts of the incident to the J.M.F.C Morva (H). After writing it, my signature was obtained in her presence. I am shown that statement. It bears my signature. As it has been identified by the witness, the statement u/s 164 of CrPC has been assigned Exhibit-18. The prosecution has been ordered to give a copy of the victim's statement with Exhibit-18 to the defense. The accused persons Vajesing, Ajeet Bhagora and Sanjay are present in the court today and they are sitting behind the curtain. The witness identifies them. Cross Examination by Ld. Adv. Mr. S.N. Chavda for the Accused: (7) It is not true that the incident happened eight to ten months after my 10th standard result. The incident happened in summer. It is true that the house, where my father had gone after starting the motor in the farm, is about one kilometer away from the farm. It is true that Taviyad, Bhagora and various other streets are situated at Rajayata village. It is true that there are houses in almost in every farm in my village. It is true that the farm of the accused Vajesang is situated adjoining to our farm. It is true that I have been knowing Ajit, Vajesing and Sanjay prior to the incident as they belong to my village. It is not true that there is dispute regarding trees between my and Vajesingh's farms since long. It is not true that mediators were called twice-thrice for the said dispute. It is not true that there was dark when I went to stop the motor. It is true that there was no electricity facility surrounding to my farm. It is true that no occasion arose after the incident till the complaint to meet the accused and I have not seen him. It is true that my and the accused' house are located in different streets. I went Rajasthan six months after the incident. It is true that no one from the village was knowing that I went Rajasthan. It is true that I had not informed my sister Rekha about this incident. No one interrogated me after the incident till the delivery of child. My sister Rekha is about twenty five years old. My sister Rekha had not asked me about changes took place in my body till I stayed with her. It is true that I had not informed my sister Rekha about this incident. No one interrogated me after the incident till the delivery of child. My sister Rekha is about twenty five years old. My sister Rekha had not asked me about changes took place in my body till I stayed with her. It is true that I had not discussed about the incident till I was discharged on bail. I was studying at Pinchhoda village and I gave examination of Std.10 in Sanjeli village. I was commuting from Pinchhoda village to my village when I was studying. The police interrogated me one week after giving the complaint by my mother. The police took my signature in the statement given by me. I read my statement before making my signature. It is not true that I had not dictated in my police statement that Vajesingh pulled me down. It is not true that I had not dictated in my police statement that Ajit gagged my mouth. It is not true that I had not dictated in my police statement that Ajit put his shirt off. It is not true that I had not dictated my date of birth in my police statement. Police took me to the hospital for my medical examination when my statement was recorded. My clothes, which were recovered by the police, were recovered two days after my medical examination. I showed scene of offence to the police when police recorded my statement. It is not true that Sanjay told me to put the water when I went at farm and Vajesingh and Ajit might have met there and though no incident took place with me, I am stating false fact due to dispute regarding trees in the farm at the behest of my parents. It is not true that the incident happened somewhere else but I have given false names of the accused due to dispute. It is not true that I am giving false deposition at the behest of my parents.” 9. Thus, according to the victim, the two accused herein caught hold of her at around 8:00 O' clock in the late evening while she was returning home after putting the pot of water at the house of the original accused No.3 (acquitted) and committed rape upon her. According to the victim, after the sexual assault, she fell almost unconscious. Thus, according to the victim, the two accused herein caught hold of her at around 8:00 O' clock in the late evening while she was returning home after putting the pot of water at the house of the original accused No.3 (acquitted) and committed rape upon her. According to the victim, after the sexual assault, she fell almost unconscious. After sometime, when the victim felt better, she stood up, and at that point of time, she noticed that she was bleeding from her private part. She put up her clothes and proceeded towards her house. According to her, as she was threatened by the accused, she did not disclosed about the assault to anyone. After eight months from the date of the incident, her parents asked her to go to Rajasthan at the house of her cousin sister (daughter of father's sister). The cousin sister of the prosecutrix, namely, Rekha is serving as a teacher in a school at village Kajra, Rajasthan. The prosecutrix was asked to stay at the house of her cousin sister so that she could play with the new born child and also take care of her. While she was at the house of her cousin sister at Rajasthan, he experienced pain in her stomach and while attending nature's call, she delivered the baby. She got frightened and, therefore, picked up the baby and abandoned her in the school premises and came back home and went to sleep. This fact was not even disclosed by the prosecutrix to her cousin sister Rekha. On the next day, few persons, who spotted the infant abandoned by the prosecutrix, picked up the infant and admitted her in the dispensary. According to the prosecutrix, she fell sick. Even, thereafter, she did not disclosed anything about the delivery. Sometime thereafter, she disclosed about the entire episode before her cousin sister-Rekha and that is how Rekha informed to the police at Rajasthan. The prosecutrix, thereafter, admitted that the child abandoned in the school premises was delivered by her. The parents of the prosecutrix reached Rajasthan and got the prosecutrix released from the custody of the police. The prosecutrix was, thereafter, brought to her home at village Rajayta, Taluka: Morva, District: Panchmahals (Gujarat). In her cross-examination, she has stated that there are many small localities in the village Rajayta. She admitted that practically, in every field, there is a house. The prosecutrix was, thereafter, brought to her home at village Rajayta, Taluka: Morva, District: Panchmahals (Gujarat). In her cross-examination, she has stated that there are many small localities in the village Rajayta. She admitted that practically, in every field, there is a house. She also admitted that adjoining her agricultural field is the agricultural field of Vajesinh (accused No.2). She admitted that all the accused are residents of her village and she knew them much before the incident. A suggestion was put to her that before the incident, a quarrel had ensued between her family and Vajesinh as regards the trees standing on the boundary of their agricultural field. This suggestion, however, has been denied. She denied the suggestion that on three occasions, the elders of the village had met to resolve the controversy as regards the trees. She admitted in her cross-examination that after the incident and filing of the first information report she had no occasion to meet the accused persons or even see them. She has stated in her cross-examination that she left for Rajasthan after eight months from the date of the incident. She has admitted that except her parents, nobody else in the village knew about her leaving for Rajasthan. She also admitted that she did not disclosed about the incident to her sister-Rekha. She has admitted that after the incident and till the time she delivered the baby, no one had inquired with her about anything. She has deposed that no one inquired with her as regards the change in her physical appearance. She has deposed that it is after the registration of the first information report, the police recorded her statement. She has also deposed that she had signed the statement given by her. She denied the suggestion that she had not stated before the police that Vajesinh threw her down at the time of the incident. She also denied the suggestion that she had not stated before the police that Ajitkumar had gagged her mouth at the time of the incident. She admitted that she had not stated before the police that Ajit took off his shirt. All other suggestions put to her by the defence counsel were denied. 10. She also denied the suggestion that she had not stated before the police that Ajitkumar had gagged her mouth at the time of the incident. She admitted that she had not stated before the police that Ajit took off his shirt. All other suggestions put to her by the defence counsel were denied. 10. At this stage, we may also look into the statement of the prosecutrix recorded by the JMFC, Morva under section 164 of the Cr.P.C. The statement reads thus:- “Question : What is the name of your parents, where are you residing? Answer : The name of my father is Bharatbhai Salabhai by caste - Taviyad, who is doing the business of agriculture. The name of my mother is Kaliben. I am residing with my parents at village Rajayta. Question : Up to which standard you have studied ? In which school you have studied? Answer : I have studied up to standard 10th, in the Secondary School at Pichoda, Tal. - Sanjeli, Dist. Dahod. At present I am not studying. I know that I should not speak lie. Looking to the aforesaid questionnaire, it is found that though the witness is minor but she is capable to give the statement, she understands the seriousness of the oath, and as she wants to record the statement by her own willingness without any type of pressure. Hence, her statement has been recorded in-camera today at 14:00 hours on 28-12-015. Oath Administered. I am residing with my parents at village - Rajaita, and I am doing house-hold work at my home. I went to Navoday Vidhyalay, at village Kajda in Rajasthan to take care of the daughter of my sister Rekhaben, where she is doing job. There I gave birth to a child. The accused persons Vajesinh Dalpatbhai and Arjitbhai Bhagora had committed rape upon me at village Rajaita, due to which I had given birth to a child. Hence my mother Kaliben had lodged complaint at Morva (H) Police Station against the accused. Except this, I do not want to say anything else. Such is my fact.” 11. The prosecution examined PW 2-Kaliben Bharatbhai Tavadiya, Exh.20. She is the mother of the victim. The PW 2, in her evidence, has deposed that her daughter (victim) was sent to Rajasthan. Except this, I do not want to say anything else. Such is my fact.” 11. The prosecution examined PW 2-Kaliben Bharatbhai Tavadiya, Exh.20. She is the mother of the victim. The PW 2, in her evidence, has deposed that her daughter (victim) was sent to Rajasthan. From Rajasthan, the PW 2 received a phone call from Rekha informing that the victim had delivered a baby boy. The PW 2 was also informed by Rekha that the victim had abandoned the baby after giving birth. On receipt of such information from Rekha, the PW 2 along with few of her relatives, went to Rajasthan at the house of Rekha. The PW 2 has deposed that when they reached Rajasthan, her daughter was admitted in a dispensary and, thereafter, the police took the victim along with them. At Rajasthan, the victim had lodged the complaint. The PW 2 has deposed that as her daughter was arrested, they got her released on bail. Thereafter, they all came back to their village Rajayta. At that point of time, the victim disclosed, for the first time, before her mother that before about nine months when she had gone to the well to switch off the electric motor, she was raped by the accused persons. The PW 2 has deposed that her daughter told her that the accused persons had administered threats that if she would disclose about the incident to anyone, then they would kill her parents. She has deposed that before lodging the first information report, a village Panch was convened. As the issue could not be resolved in the Panch meeting, the first information report had to be lodged ultimately. In her cross-examination, the PW 2 has stated that the agricultural field of Vajesinh (accused No.2) is adjoining to her field. She denied the suggestion that she is at inimical terms with Vajesinh on account of the trees standing on the boundary of the two fields. She has deposed in her cross-examination that she came to know about the entire incident only after Rekha called her up. She has deposed that when her daughter left for Rajasthan, she did not noticed any change in the physical appearance or in the body weight or other features of her daughter. She has deposed that even while her daughter left for Rajasthan, or before that, no occasion to inquire about anything with her daughter had arisen. She has deposed that when her daughter left for Rajasthan, she did not noticed any change in the physical appearance or in the body weight or other features of her daughter. She has deposed that even while her daughter left for Rajasthan, or before that, no occasion to inquire about anything with her daughter had arisen. She has deposed that even Rekha at Rajasthan did not inform her that some changes were to be seen in the victim. She admitted that she lodged the first information report in accordance with what was stated by her daughter. 12. The prosecution examined PW 3-Bharatbhai Salabhai Taviyad, Exh.22. The PW 3 is the father of the victim. However, the PW 3 has not supported the case of the prosecution. He was declared hostile. In the cross-examination of the PW 3 by the defence counsel, he has admitted that he came to know about his daughter having delivered a baby on 28th October, 2015 through his nephew, namely, Anilbhai Zaverbhai Garasiya, resident of village Ukhreli, Taluka: Santrampur, Vadodara. 13. The prosecution has examined PW 4-Anilkumar Zaverbhai Garasiya. He happens to be the brother of Rekha. He has not supported the case of the prosecution. He has been declared as a hostile witness. The only part of his evidence which we may take note of is that the victim was interrogated by the police at Rajasthan and in the course of the interrogation, the victim had stated about the incident of rape. 14. The prosecution has examined PW 5-Dr. Sandeep Harishankar Sharma, Exh.25. Dr. Sharma, in his evidence, has deposed that on 22nd December, 2015, he was on duty as the Medical Officer at the Godhra Civil Hospital. At that point of time, a rape victim was brought at the hospital for medical examination. Dr. Sharma has deposed that on inquiring with the victim as regards the history of the incident, she failed to give full cooperation. However, ultimately, according to Dr. Sharma, the victim disclosed that about eight to ten months back, she was raped by the accused. Dr. Sharma produced the medical certificate of the victim, Exh.26. 15. The prosecution examined PW 6-Dr. Kalpesh Punjabhai Machhar, Exh.27. Dr. Machhar had examined the victim on 21st December, 2015. According to Dr. However, ultimately, according to Dr. Sharma, the victim disclosed that about eight to ten months back, she was raped by the accused. Dr. Sharma produced the medical certificate of the victim, Exh.26. 15. The prosecution examined PW 6-Dr. Kalpesh Punjabhai Machhar, Exh.27. Dr. Machhar had examined the victim on 21st December, 2015. According to Dr. Machhar, the victim had narrated about the incident of rape in the form of history, which has been recorded in the medical certificate issued by Dr. Machhar, Exh.28. Dr. Machhar also examined the two accused herein and produced the medical certificates Exhs. 29 and 30 respectively. Dr. Machhar collected the blood samples of both the accused for the purpose of the DNA test. According to Dr. Machhar, none of the two accused stated anything in the form of history at the time of their medical examination.. He has deposed that the accused persons conveyed to him that no such incident, as alleged, had ever occurred. 16. The prosecution examined PW 7-Gulabsinh Sunabhai, Exh.32 as one of the Panch witnesses. The PW 7 is the Panch witness of the Panchnama of the scene of the offence. The PW 7 also acted as one of the Panch witnesses to the other three Panchnamas, Exhs. 34,35 and 36 respectively regarding collection of the clothes of the victim. 17. The prosecution examined PW 9-Rekhaben Dharmendrakumar Bhamat, Exh. 47. The PW 9, in her evidence, has deposed that she is serving as a teacher since 2006 in a school by name Navoday Vidhyalay at Rajasthan. Her husband is a teacher in a primary school at village Orvada, Taluka: Godhra. According to the PW 9, she visited the house of her husband at Godhra during the Diwali period with her daughter named Hetli. The PW 9 was very keen to take her daughter along with her to Rajasthan but the difficulty was that there was no one to look after her as she was serving in the school. According to the PW 9, as the victim had failed in her standard 10th exam, she took the victim along with her to Rajasthan so that she could look after her daughter and the victim could also start preparing for her 10th standard exam. The PW 9 has deposed that she left in the morning for her school. Her daughter and the victim were all alone at home. The PW 9 has deposed that she left in the morning for her school. Her daughter and the victim were all alone at home. In the afternoon hours, someone left behind a newly born infant near the wall of the school. The police arrived at the school. According to the PW 9, she returned home in the evening and found the victim sleeping. When the PW 9 inquired with the victim, she started crying. The PW 9 thought that the victim might have got disturbed having come to know that a newly born infant had been abandoned and left near the wall of the school. Thereafter, she informed about the entire event to her husband and her brother. On the next day, everyone came to Rajasthan. In the course of the interrogation by the police, the victim is said to have disclosed about the alleged rape and being impregnated. 18. In her cross-examination, the PW 9 has deposed that if any female gets pregnant, then the change in her physical appearance etc. would be very prominent. She has deposed that while she got the victim with her to Rajasthan and even during her stay at Rajasthan till the time the victim delivered the baby, she did not get to know that the victim was pregnant. 19. The prosecution examined PW 13- Bhikhabhai Kanabhai Bharwad, Exh. 64 as the Investigating Officer. The PW 13, in his evidence, has given more than a fair idea about the entire investigation carried out by him. He has deposed as to how the statement of the victim under section 164 of the Cr.P.C was recorded. He has also deposed how the blood samples etc. were collected and forwarded to the FSL for the DNA test etc. ANALYSIS 20. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Trial Court committed any error in holding the accused persons guilty of the offence of rape. 21. We have lent our anxious consideration to the materials on record as well as the competing arguments based thereon. Having regard to the charge levelled, the fulcrum of the prosecution case logically is the testimony of the prosecutrix. Undeniably therefore the credibility and trustworthiness of the victim’s version is the decisiving factor to adjudge the culpability of the appellants. 22. We have lent our anxious consideration to the materials on record as well as the competing arguments based thereon. Having regard to the charge levelled, the fulcrum of the prosecution case logically is the testimony of the prosecutrix. Undeniably therefore the credibility and trustworthiness of the victim’s version is the decisiving factor to adjudge the culpability of the appellants. 22. In the cases of rape, the law does not require corroboration and, therefore, if the evidence of the prosecutrix is believed, there is no bar to convict the accused on her testimony alone. To put it in other words, there is no such law which requires corroboration before the statement of the prosecutrix is acted upon. Indisputably, a prosecutrix is a competent witness (vide section 118 of the Evidence Act). She is not an accomplice within the domain of section 133 of the Evidence Act. Thus, her statement, as such, does not require a corroboration within the meaning of section 114-B (114-A) of the Evidence Act which provides that an accomplice is unworthy of credit unless she is corroborated in material particulars. The prosecutrix is a victim like any other victim of any other offence. Hence, the same weight is to be attached to her statement which requires to be attached to the statement of an injured person. Therefore, if the statement of the prosecutrix is quite clear and unequivocal on the point as to who has ravished her, there is no reason, whatsoever, as to why the said statement, without any corroboration from any quarter, whatsoever, cannot form the basis of conviction. Thus, her statement is to be scrutinized like the statement of any other witness and if there is a ring of truth about it and if it inspires confidence, the Courts would be under an obligation to rely thereupon. However, the principal question we need to answer is to what extent we should accept the case of the prosecutrix having regard to the evidence on record. If the statement of the prosecutrix suffers from serious infirmities, inconsistencies and the overall case put up by the prosecution does not inspire any confidence, then it would be very hazardous to base the conviction solely on the evidence of the prosecutrix. 23. Here is a case, in which, the prosecutrix claims that late in the evening at about 8:00 O' clock, she was sexually assaulted by the appellants herein. 23. Here is a case, in which, the prosecutrix claims that late in the evening at about 8:00 O' clock, she was sexually assaulted by the appellants herein. It is her case that as she was ravished by two persons, she practically became unconscious. According to her, she remained at the place of the occurrence for sometime, and later when she felt better, she stood up and walked straight to her home. It is her case that while she stood up, she noticed that she was bleeding. It is her case that the accused persons had threatened her with dire consequences that if she would disclose to anyone about the incident, they would kill her brother. According to her, such is the reason why she kept quiet about the incident. It is also her assertion that on account of the act alleged to have been committed by the accused persons, she conceived. 24. We find it extremely difficult to believe the prosecutrix. The overall evidence on record and the other circumstances renders the entire case put up by the prosecutrix highly doubtful. 25. First and the foremost thing which we should take into consideration is the delay of almost nine months in lodging the first information report. We find it very hard to believe that the prosecutrix maintained silence only on account of the so called threats administered to her by the accused persons. The delay per se is not a mitigating circumstance for the accused when the accusations of rape are involved. As held by the Supreme Court in many of its decisions that delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting it authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explained the delay, it is a relevant factor. In the case on hand, we are not convinced with the explanation offered for the delay of almost nine months. 26. Mr. Barot, the learned counsel is justified in his submission that delay in the present case has assumed significance. In case if the prosecution fails to satisfactorily explained the delay, it is a relevant factor. In the case on hand, we are not convinced with the explanation offered for the delay of almost nine months. 26. Mr. Barot, the learned counsel is justified in his submission that delay in the present case has assumed significance. He is justified in his submission that had the prosecutrix lodged the first information report soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If a long and inordinate delay of almost nine months in lodging the first information report is to be ignored and the prosecutrix is also to be believed in toto, at the same time, the same would leave the accused practically defenceless. 27. In the aforesaid context, we may refer to a decision of the Supreme Court in the case of Vijayan vs. State of Kerala, 2008 (14) SCC 763 . In the said case, the prosecutrix who was aged about 17 years, was the neighbour of the accused. In her testimony, the prosecutrix set up the case that the accused had raped her when no one else was there in the house and she was raped in the house. She did not give any complaint either to her parents or to the police in view of the promise alleged to have been made by the accused to get married to her. She became pregnant and while she was carrying a child of seven months, she requested the accused to marry her. The accused declined. Thereafter, a complaint was lodged after seven months. On such facts, the Supreme Court noted that no complaint or grievance was made either to the police or the parents thereto. The Court held as follows: “..........In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused." 28. In the case of Kaini Rajan v. State of Kerala, reported in 2013 (9) SCC 113 , on 17.9.1997 at about 8.30 a.m. it was alleged the prosecutrix was raped at a site which was by the side of a public road. It was the case of the prosecutrix that she tried to make hue and cry but was silenced by the accused by stating that he would marry her. Even after this incident he had sexual intercourse on more than one occasion. The prosecutrix became pregnant, gave birth to a child and accused did not keep his promise to marry her. It is thereafter that on 26.7.1998 nearly 10 months after the alleged rape that a case was registered. The Supreme Court referred the Vijayan's case (supra), took note of the place being on the side of a public road, the aspect of delayed filing of the report and also the behavior of the parents of the prosecutrix in not approaching the family members of the accused for marrying the prosecutrix and instead lodging the report. The Court also found that having regard to the site, if the prosecutrix has made any resistance or made hue and cry it would have attracted large number of people from the locality. The appeal filed by the accused was allowed. 29. What does the prosecution has to say about the DNA test conducted in the present case. The prosecution has accepted the report of the DNA test. The DNA test confirms that none of the two appellants herein are the biological father of the child delivered by the prosecutrix. The DNA test report is on record. 29. What does the prosecution has to say about the DNA test conducted in the present case. The prosecution has accepted the report of the DNA test. The DNA test confirms that none of the two appellants herein are the biological father of the child delivered by the prosecutrix. The DNA test report is on record. The same has been produced at Exh.73. The DNA test report reads thus: From above result, it is observed that: “1, One of the allele of the DNA profile of Blood sample , said to be of the child baby Prince(source of Ex.A, Case no.16/DNA/6) matches with one of the respective allele of the DNA Profile of blood sample of the mother XXXXX Bharatbhai Taviyad (Source of Ex-A,Case no.16/DNA/133). 2. Non-maternal alleles of the DNA Profile of Blood sample of the child baby Prince (source of Ex.A, Case no.16/DNA/6) are not present in the DNA Profile of blood sample of Ajitsinh Kumarsinh Bhagora (Source of Ex- A, Case no.15/DNA/410). 3. Non-maternal alleles of the DNA Profile of Blood sample of the child baby Prince (source of Ex.A, Case no.16/DNA/6) are not present in the DNA Profile of blood sample of Vajesinh Dalpatbhai Damor (Source of Ex- B,Case no.15/DNA/410). From the above observations, it is concluded that :- 1. STR profiles of Ms. XXXXX Bharatbhai Taviyad (source of Ex.A: blood sample, case no 16/DNA/133) is consistent as biological mother of the child baby Prince (source of Ex.A: blood sample, Case no.16/DNA/6). 2. STR profiles of Mr. Ajitsinh Kumarsinh Bhagora (source of Ex.A: blood sample, case no 15/DNA/410) & Mr. Vajesinh Dalpatbhai Damor (source of Ex.B: blood sample, case no 15/DNA/410) are not consistent as biological father of the child baby Prince (source of Ex.A: blood sample, Case no.16/DNA/6). Note: Results relate only to the exhibits tested. Date of Starting the Analysis: 03-05-2016 Date of Completing the Analysis: 08-06-2016” 30. The DNA technology over a period of time has made significant progress and achieved sophistication to the extent that the Courts world over with increasing level of confidence, have been relying on the DNA testing. Scientific literature suggests that subject to genuineness of the samples and the laboratory analysing the samples following scientific protocols, the DNA results would be unquestionable and may lead conclusively either to involvement or exoneration of the accused in certain cases. Scientific literature suggests that subject to genuineness of the samples and the laboratory analysing the samples following scientific protocols, the DNA results would be unquestionable and may lead conclusively either to involvement or exoneration of the accused in certain cases. In the case of State of Gujarat v. Mohan Hamir Gohil and others (Criminal Confirmation Case No.1/2012), a Division Bench of this Court after referring to various authorities on DNA technology, different methodology used for testing and the scientific advancements made world over, noticed that over a period of time the Courts across the world including in India have been placing heavy reliance on DNA results. It was observed as under : “33. From the above literature, it can be seen that over a period, the technology of DNA testing has made great strides and achieved sophistication leading to results which can often times be used either for inclusion or exclusion of the accused. DNA of a person is considered unique to himself (except in cases of identical twins) and can be traced from smallest quantity of blood, saliva, semen, root of hair, skin, nail and such like. Subject, of course, to the laboratory analyzing the sample following the scientific protocols, the DNA result becomes absolutely unquestionable. 34. Let us now see how the courts have viewed the advancement in DNA technology. Section 53A of the Criminal Procedure Code was introduced by Amendment Act 25 of 2005 with effect from 25.3.2006. Sub-section (1) section 53A, provides that a when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. Consent of the accused thus in giving blood sample, etc. is no longer necessary. Sub-section (2) of section 53A provides that such medical practitioner conducting the examination shall without delay, examine such person and prepare a report of his examination giving various details including the description of the material taken from the person of the accused for DNA profiling. Consent of the accused thus in giving blood sample, etc. is no longer necessary. Sub-section (2) of section 53A provides that such medical practitioner conducting the examination shall without delay, examine such person and prepare a report of his examination giving various details including the description of the material taken from the person of the accused for DNA profiling. This provision came up for consideration before the Supreme Court in the case of Krishan Kumar Malik v. State of Haryana, 2011 Cri.L.J. 4274, in which it was observed as under: 45. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences. In the case of Raghuvir Dessai v. State, 2007 Cri.L.J. 829, learned Single Judge of the Bombay High Court observed as under: ........... The clinching evidence has come from the Senior Scientific Officer Shri Sathian PW 15 who carried out the DNA test on the basis of the material forwarded to him and which was ; collected by Dr. Sapeco/PW 5. He has confirmed that the accused is the contributor of the semen which was collected by Dr. Sapeco in the form of vaginal swab. DNA (Deoxyribonucleic acid) is found specially in cell nuclei which are the foundation of heredity. DNA is the genetic blue print for life and is virtually contained in every cell. NO two persons, except identical twins have ever had identical DNA. DNA testing can make a virtually positive identification when the two samples match. It exonerates the innocent and helps to convict the guilty (See page 249 of Jhala and Rajus Medical Jurisprudence Sixth Edition). DNA is the genetic blue print for life and is virtually contained in every cell. NO two persons, except identical twins have ever had identical DNA. DNA testing can make a virtually positive identification when the two samples match. It exonerates the innocent and helps to convict the guilty (See page 249 of Jhala and Rajus Medical Jurisprudence Sixth Edition). The DNA testing hits the nail on the head of the accused and is the last and clinching piece of evidence which shows that it is the accused and the accused alone who committed the rape of the victim/PW11. In the case of State (through C.B.I) v. Santosh Kumar Singh, 2007 Cri.L.J. 964, a Division Bench of the Delhi High Court observed as under: Dr. A.K. Sharma has held that while conducting pastmortem on local physical examination of private parts, it was noticed that black, curly, non-matted pubic hair and hymen intact, no tearing present, admitting one finger only. He has also given his opinion that the deceased has not been subjected to sexual intercourse. However, it is the DNA test conducted on the vaginal swabs, vaginal slide and underwear of the deceased compared with the blood sample of the accused that the experts have come to the conclusion that there is sperm present in the vaginal swabs and the DNA of the sperm so found present, matches with DNA of the accused obtained from his blood sample. Xxxx 48. The next question that engages us is whether the DNA test conducted was proper? It is in evidence of Dr.Lalji that the method used and the test conducted in determining and arriving at the conclusion were done as per standard practice as also per scientific technology suitable for such tests. The trial Court has elaborately introduced its learning based on literature which, to a large extent, was never even put to the expert witness and even otherwise there is no positive evidence on record to show that the test so conducted by the experts were perverse and/or not in keeping with the standard scientific methodology. The trial Court has elaborately introduced its learning based on literature which, to a large extent, was never even put to the expert witness and even otherwise there is no positive evidence on record to show that the test so conducted by the experts were perverse and/or not in keeping with the standard scientific methodology. We may make useful reference to judgments of the Supreme Court in AIR 1954 SC 28 : (1954 Cri LJ 257); Sundar Lal v. State of Madhya Pradesh, AIR 1957 SC 580 : (1957 Cri LJ 889); Bhagwan Das v. State of Rajasthan wherein it has been held by the Supreme Court that findings of an expert witness can not be set aside by a Court by making a reference to some literature/book without confronting the expert with them and directing his opinion on it. In another case decided by the Honble Supreme Court in AIR 1982 SC 1157 : (1982 Cri LJ 1243): Gambhir v. State of Maharashtra, it was held that the Court should not usurp the function of an expert by arriving at its own conclusions contrary to the one given by the expert witness. There has been great effort made by counsel for the accused to discredit the test conducted as such by referring to either possibility of contamination and/or with reference to snippets of replies given by the experts in cross-examination but we find that at no stage has any of the expert witness said that the tests conducted by them have given a wrong result or there is a possibility that the test so conducted by them would have l;given a wrong result. On the contrary, they have categorically ruled out any such possibility of contamination and/or erroneous results. In the case of Thogorani v. State of Orissa, 2004 Cri. L.J. 4003, a Division Bench of the Orissa High Court observed as under: 11. Before answering the above contentions raised by the learned counsel for opponent No.3 it would be apt to note that the DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at scene of crime. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to obtain conclusive results in case win which the previous testing had been inconclusive. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to obtain conclusive results in case win which the previous testing had been inconclusive. Moreover, DNA sampling may also impinge on familial privacy where information obtained from one persons sample provides information regarding his or her relatives. In the case of Pantangi Balarama Venkata Ganesh v. State of A.P. 2003 Cri.L.J. 4508, a Division Bench of the Andhra Pradesh High Court described DNA as a perfect science and observed as under: Thus, the evidence of DNA expert is admissible in evidence as it is a perfect science. In the cross-examination P.W.46 has deposed as under: If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 million world population. It means that DNA test gives the perfect identity. It is very advanced science. In the case of Sajeera v. P.K.Salim, 2000 Cri. L. J. 1208, learned Single Judge of the Kerala High Court observed that DNA fingerprinting test has been much advanced and resorted by the courts of law to resolve the dispute regarding paternity of the child. It was observed as under: 15. It has been held in several cases that blood test is an important piece of evidence to determine the paternity of the child. Though by a blood test it cannot positively establish the paternity of the child, it can certainly exclude certain individual as the father of the child. Therefore, while the negative finding in a blood test is definite, the positive finding only indicates a possibility. Now the DNA finger-printing test has been much advanced and resorted to by the Courts of law to resolve the dispute regarding paternity of the child. It is true that without the consent of the person blood test cannot be conducted and there is no law in India enabling the Court to compel any person to undergo blood test as available in England. 35. It is true that without the consent of the person blood test cannot be conducted and there is no law in India enabling the Court to compel any person to undergo blood test as available in England. 35. From the above, it can be seen that several courts in India over a period of time have accepted DNA analysis as totally reliable, of course, as long as, the laboratories employ sufficient skill and care in doing so. DNA analysis is employed by various countries for criminal investigation and prosecution. Various countries have created data banks of DNA profile of the persons who are already convicted which can be matched with DNA profile of the samples collected from crime scene. We are aware that creating such data-base has several legal and constitutional issues. We are, however, in the present case, neither required nor called upon to enter such arena. We are only trying to demonstrate effectiveness of the DNA technology and that when properly done its results are infallible. 36. We are not unmindful of a decision of this Court in the case of Premjibhai Bachubhai Khasiya v. State of Gujarat, 2009 Cri. L.J. 2888 wherein a Division Bench of this Court observed that if the DNA report is the sole piece of evidence, even if it is positive, cannot conclusively fix the identity of the miscreant, but if the report is negative, it would conclusively exonerate the accused from the involvement or charge. It was observed that science of DNA is at a developing stage and it would be risky to act solely on a positive DNA report. This decision was rendered more than four and a half years back. Science and Technology has made much advancement, and world over DNA analysis technology is being relied upon with greater confidence and assurance. We do not think that the Indian Courts need to view the technology with distrust. Of course, subject to the laboratory following the usual protocols, DNA result can be of immense value to the investigators, prosecutors as well as courts in either including or excluding a person from involvement in a particular act. The said decision of this Court must be viewed in the background of the facts in which it was rendered. It was a case where the accused were charged with offence under sections 363, 366, 376 read with section 114 of the Indian Penal Code. The said decision of this Court must be viewed in the background of the facts in which it was rendered. It was a case where the accused were charged with offence under sections 363, 366, 376 read with section 114 of the Indian Penal Code. All important witnesses including the prosecutrix herself had turned hostile and did not support the prosecution. Despite which, the trial Court handed down conviction primarily on the basis of DNA report which opined that the DNA profiling of the foetus matched with that of the appellant original prime accused. It was in this background while reversing the conviction, the above noted observations were made. It can thus be seen that mere establishment of the identity of the father of the foetus in any case would not be sufficient to record conviction of the accused for rape and gang-rape under section 363, 366 and 376 of the Indian Penal Code. The said decision, in our opinion, therefore, cannot be seen as either rejecting the reliability of the DNA technology or laying down any proposition that in every case the DNA result must be corroborated by independent evidence before the same could be relied upon. 31. The DNA profiling is an extremely accurate way to compare a suspect's DNA with crime scene specimens, victim's DNA on the blood stained clothes of the accused or other articles recovered. DNA testing can make a virtually positive identification when the two samples match. As it is the case of the prosecutrix that she conceived on account of the rape alleged to have been committed by the appellants herein, the DNA test had to be carried out and the report of such test indicates that none of the two appellants are the biological father of the child delivered by the prosecutrix. What will be the effect of the DNA report on the case of the prosecution? It practically renders the entire case of the prosecutrix false. If the DNA test report exonerates the appellants herein, then the question is through whom the prosecutrix conceived? This is suggestive of the fact that the prosecutrix might be suppressing the true facts and she does not want to reveal the name of the real person who impregnated her. It practically renders the entire case of the prosecutrix false. If the DNA test report exonerates the appellants herein, then the question is through whom the prosecutrix conceived? This is suggestive of the fact that the prosecutrix might be suppressing the true facts and she does not want to reveal the name of the real person who impregnated her. As regards the science of DNA profiling, we may refer to the observations made by the Supreme Court in one of its very recent pronouncements in the case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra, AIR 2019 SC 1 . We may quote the relevant observations: “55. In Mukesh a separate opinion was delivered by Justice Banumathi and in paragraph 455 of the Report it was held that DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification. It was stated: "455. DNA profiling is an extremely accurate way to compare a suspect's DNA with crime scene specimens, victim's DNA on the blood-stained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA finger print is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot on any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The Experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders."(Emphasis supplied by us). 56. In the context of importance of scientific and technological advances having been made, we may recall the observation of this Court in Selvi v. State of Karnataka36 in paragraph 220 of the Report that "The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts." 32. It is also not the case of the prosecution that the DNA test report is not accurate or no implicit reliance should be placed upon the same by this Court. It is also not the case of the prosecution that the DNA test report is not accurate or no implicit reliance should be placed upon the same by this Court. The Supreme Court in Santosh Kumar Singh v. State, 2010 (9) SCC 747 has observed that the DNA is practically accurate and exact science and that the Court would not be justified in rejecting the DNA report. The DNA evidence is now a predominant forensic technique for identifying the criminals. Such DNA test not only helps to convict the accused but also serves to exonerate. 33. In Mukesh & Anr vs State for Nct Of Delhi & Ors, 2017 6 SCC 1 , her Ladyship Justice Banumathi has observed in para-457 as under:- “DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes etc. recovered from the accused or from witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA finger printing makes it possible to obtain conclusive results. Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 kms. from the place where the offence has been committed by any other registered medical practitioner.” 34. in Kamalanantha And Ors vs State Of Tamil Nadu, 2005 5 SCC 194 , the Supreme Court has observed in para-61 as under: “Regarding Data Base and contamination Dr.Lalji has stated in cross- examination as under :- "As far as Paternity is concerned, the Paternity of the child is determined by identifying which are the bands of maternal and which are paternal. Therefore, comparison of DNA fingerprinting of the child with the mother will identify which are the bands maternally inherited. Elimination of these bands will leave those bands inherited from the child’s to father, the paternally specific bands. Therefore, comparison of DNA fingerprinting of the child with the mother will identify which are the bands maternally inherited. Elimination of these bands will leave those bands inherited from the child’s to father, the paternally specific bands. If the alleged Father's Fingerprinting pattern contains all of these bands, then he is the true Biological Father of that Child and Paternity is confirmed. The article published by a Laboratory - CELLMARK, United States is Ex.D.42." The witness further clarified that a laboratory error can produce mismatch but it cannot produce a proper match.“ 35. Thus, there is no good reason for us to doubt the authenticity of the DNA test report in the present case. 36. In view of the peculiar facts, as discussed above, obviously the medical evidence was not going to be of any assistance. When the incident had admittedly taken place almost nine months before the filing of the first information report, the examining doctor was unlikely to find any evidence which would either support or conflict with the version of the victim. Had the oral deposition of the victim along with her mother and other witnesses being the sole evidence on record, we would have certainly examined it minutely and assessed the same with the aid of the well settled and established legal principles. Serious questions such as the improbability of a pregnancy not being noticed by the mother and other family members including Rekha at Rajasthan would be one of the factors which would go into our consideration. The suggestion of the defence that there was another male studying with the prosecutrix might be the person involved in making the girl pregnant would also require serious consideration. However, this lengthy discussion is absolutely futile since the victim gave birth to a child allegedly born out of the episode of rape. The charge, Exh.5, framed against the accused persons is very specific in this regard. It is not the case of the prosecution that other than the alleged rape by the accused persons, the victim girl voluntarily or otherwise had sexual intercourse with any other man. In that view of the matter, the DNA test report assumes significance. The charge, Exh.5, framed against the accused persons is very specific in this regard. It is not the case of the prosecution that other than the alleged rape by the accused persons, the victim girl voluntarily or otherwise had sexual intercourse with any other man. In that view of the matter, the DNA test report assumes significance. When according to the case of the prosecution the child was born out of the pregnancy resulting from the rape by the accused persons, this accusation of rape against the accused must succeed or fail on the basis of the DNA analysis. We have reproduced the conclusion of the DNA expert. The report was conclusive and unequivocally opined that the prosecutrix was the mother of the child but either of the accused persons are not his father. 37. Unfortunately, the Trial Court brushed aside such findings of highly sophisticated scientific technology which would destroy the entire prosecution case by simply suggesting that mere negative report of DNA would not mean one should discard the oral testimony of the prosecutrix. We find such conclusion arrived at by the Trial Court quite erroneous. This conclusion was not backed or supported by any discussion on the scientific methodology or judicial pronouncements. 38. We may reproduce para-27 of the judgment passed by the Trial Court, in which, the Trial Judge has discussed as regards the DNA test report. The true English translation of para-27 reads thus; “In the course of the investigation carried out by the police, the DNA test of the child delivered by the victim has been done. The DNA report is produced at Exh.33. Taking into consideration the DNA report, it appears that none of the two accused herein are the biological father of the child delivered by the victim, namely, Prince. The said report is being given by the FSL, Surat. However, on the basis of the said report, it cannot be concluded that the accused Nos.1 and 2 have not committed the alleged offence of rape upon the victim. Because, in the case on hand, the question is not whether who is the father of the child delivered by the victim, either the accused No.1 or the accused No.2, and there is no provision in law that the child or the woman must conceive on account of the sexual assault made committed upon her. Because, in the case on hand, the question is not whether who is the father of the child delivered by the victim, either the accused No.1 or the accused No.2, and there is no provision in law that the child or the woman must conceive on account of the sexual assault made committed upon her. Even it is not argued on behalf of the complainant side as regards the corroboration between the oral evidence of the victim and the medical evidence (Exhs.76 and 77). As the complaint has been filed after a long period of time, of course, the victim took shower, washed off her clothes wore at the time of the incident and as the same has been collected after a long period of time, it is difficult to find out any scientific proof. However, when the oral evidence of the victim appears to be trustworthy, the law requires that reliance should be placed upon the oral evidence of the victim. Moreover, the provisions of sections 29 and 30 of the POCSO Act are also required to be taken into consideration. The provisions of the above two sections are as under.” 39. We find the reasonings assigned by the Trial Court, referred to above, quite erroneous. One of the cardinal principles of criminal jurisprudence is that the Trial Court should make an endevour to separate the grain from the chaff, i.e., the truth from the falsehood. But while undertaking such exercise, the Trial Court is not supposed to make altogether a different case than the one put forward by the prosecution. It goes without saying that even the evidence is to be led in accordance with the charge framed by the Trial Court against the accused. The reasonings assigned by the Trial Court in para-27, altogether makes out a different case than the one put up by the prosecution. This is not permissible in law. 40. We are of the view that in view of the clear and emphatic conclusion of the DNA report, the accused deserves to be acquitted. 41. A lot was argued by the learned APP appearing for the State on the presumption which the Court is obliged to raise as provided in section 29 of the POCSO Act. This issue as regards presumption to be drawn requires due consideration. Section 29 of the Act 2012 reads thus: “29. 41. A lot was argued by the learned APP appearing for the State on the presumption which the Court is obliged to raise as provided in section 29 of the POCSO Act. This issue as regards presumption to be drawn requires due consideration. Section 29 of the Act 2012 reads thus: “29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved." 42. The provisions of section 29 of the POCSO Act, 2012 appear to have been inserted to fulfill the object of the Act which is to protect the children from the offences of sexual assault and to secure that the children of tender age are not abused. The mandate of section 29 of the POCSO Act, 2012 lays down that if any person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and 9 of the POCSO Act, 2012, the Court has to presume that the offence is committed by the person who is prosecuted unless the accused proves to the contrary. 43. We take notice of the fact that one of the grounds, or we may say the main ground, on the basis of which, the appellants have been convicted is that the presumption under section 29 of the Act operated against them in full force which they had failed to rebut in the facts and circumstances of the present case. Therefore, it becomes absolutely necessary to examine as to what would be the extent to which the aforesaid presumption would operate against the accused charged with the offences under the provisions of the POCSO Act. 44. Although a presumption under Section 29 of the POCSO Act arises and it is presumed that the accused has committed the offence for which he is charged under the said Act, unless the contrary is proved, such a presumption cannot be absolute. Therefore, there can be no doubt about the proposition that no presumption is absolute and that every presumption is rebuttable. Therefore, there can be no doubt about the proposition that no presumption is absolute and that every presumption is rebuttable. In the case of Babu vs State of Kerala, reported at (2010) 9 SCC 189 , the Supreme Court has held as follows :- "27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. 28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden on proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution. (Vide Hiten P. Dalal v. Bratindranath Banerjee, Rajesh Ranjan Yadav v. CBI, Noor Aga v. State of Punjab and Krishna Janardhan Bhat v. Dattatraya G. Hegde." 45. In a case of this nature, the provisions of section 29 of the POCSO Act have to be strictly construed inasmuch as the penal consequences are involved. The section does not say that it is an irrebuttal presumption and in this context it can be safely concluded that the presumption to be drawn under the provision is a rebuttal presumption. In a case of this nature, the provisions of section 29 of the POCSO Act have to be strictly construed inasmuch as the penal consequences are involved. The section does not say that it is an irrebuttal presumption and in this context it can be safely concluded that the presumption to be drawn under the provision is a rebuttal presumption. We may, with profit, refer to one decision of the Calcutta High Court in this regard in the case of Shahid Hossain Biswas vs. State of Wet Bengal, 2017 (3) Calcutta Law Times, 243. The observations of his Lordship are worth being extracted as under: “[22] The law. therefore. provides for a reverse burden upon the accused in a prosecution under sections 3, 5, 7 and 9 of the aforesaid Act. The statutory presumption creates an exception to the ordinary rule of presumption of innocence available to an accused in a criminal trial and puts the onus on the accused to rebut such presumption and establish his innocence. Presumption of innocence is a basic human right which is a vital facet of fair trial rights enshrined in various international covenants like the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights (to which India is a signatory) but is not a fundamental right under Part III of the Constitution. [See Noor Aga vs. State of Punjab 2008 16 SCC 417 ]. The concept of presumption of innocence has, in recent times, been reversed in many situations by creating statutory presumptions like under sections 113A, 1138 or 114A of the Evidence Act shifting the burden on the accused to prove his innocence. Section 29 of the POCSO is, therefore, a species of such exception to the ordinary rule of presumption of innocence and must be borne in mind while appreciating the evidence of prosecution witnesses in a trial under the POCSO Act. The expressions "shall presume" and "unless contrary is proved" in the aforesaid provision creates a reverse burden on an accused to prove his innocence to earn an order of acquittal and absolves the burden of the prosecution to prove his guilt beyond reasonable doubt. How is the accused to discharge such burden? The expressions "shall presume" and "unless contrary is proved" in the aforesaid provision creates a reverse burden on an accused to prove his innocence to earn an order of acquittal and absolves the burden of the prosecution to prove his guilt beyond reasonable doubt. How is the accused to discharge such burden? Sections 3 and 4 of the Evidence Act define the words 'proved', 'shall presume' and 'disproved' as follows: Section 3: "Proved" A fact is said to be proved when, after considering the matters before it. the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. '"Disproved" A fact is said to be disproved when, after considering the matters before it. the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Section 4 "Shall presume". Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” [23] A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved [see Tarajee Khimchand vs. Yelamatri 1972 4 SCC 562 , Para-15]. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first. It is, therefore, an essential prerequisite that the foundational facts of the prosecution case must be established by leading evidence before the aforesaid statutory presumption is triggered in to shift the onus on the accused to prove the contrary; [24] Once the foundation of the prosecution case is laid by leading legally admissible evidence, it becomes incumbent on the accused to establish from the evidence on record that he has not committed the offence or to show from the circumstances of a particular case that a man of ordinary prudence would most probably draw an inference of innocence in his favour. The accused may achieve such an end by leading defence evidence or by discrediting prosecution witnesses through effective cross-examination or by exposing the patent absurdities or inherent infirmities in their version by an analysis of the special features of the case. However, the aforesaid statutory presumption cannot be read to mean that the prosecution version is to be treated as gospel truth in every case. The presumption does not take away the essential duty of the Court to analyse the evidence on record in the light of the special features of a particular case, eg. patent absurdities or inherent infirmities in the prosecution version or existence of entrenched enmity between the accused and the victim giving rise to an irresistible inference of falsehood in the prosecution case while determining whether the accused has discharged his onus and established his innocence in the given facts of a case. To hold otherwise, would compel the Court to mechanically accept the mere ipse dixit of the prosecution and give a stamp of judicial approval to every prosecution, howsoever, patently absurd or inherently improbable it may be.” 46. We may also refer to one decision of the Bombay High Court (Nagpur) Bench in the case of Sachin S/o. Shivaji Dhongade vs. The State of Maharashtra, Criminal Appeal No.38 of 2015, decided on 26th February, 2016. In the case of Sachin (supra) the Bombay High Court held as follows: "17. Thus, when a person is prosecuted for commission of the offence specified in the said section, the court is required to presume that the said person has committed the said offence unless the contrary is proved. 18. The presumption, however, cannot be said to be irrebuttable. In-fact, no presumption is irrefutable in law, as this cannot be equated with conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved. 19. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law; they fly in a twilight but vanish in the light of facts." 47. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved. 19. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law; they fly in a twilight but vanish in the light of facts." 47. In Kali Ram v. State of Himachal Pradesh (1973) 2 SCC 808 , Khanna, J., speaking for the 3-Judge Bench, held: "One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal." 48. In The State through the Delhi Administration v. Sanjay Gandhi [ AIR 1978 SC 961 ], it was stated: "Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The evidences adduced by the parties before the trial court lead to one conclusion that the Appellant had been able to discharge his initial burden. The burden thereafter shifted to the Second Respondent to prove his case. He failed to do so. The submission of the Second Respondent that the Appellant had not denied his entire responsibility and the dispute relating only to the quantum of debt cannot be accepted. “ 49. Section 30 of the POCSO Act, 2012 reads thus; “30. Presumption of culpable mental state.- 1. In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.- In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact..” 50. The burden of proof cast on the accused under Section 30 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that be can elicit answers from prosecution witnesses through cross- examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 30 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence. 51. 51. As we have found the evidence of the prosecutrix absolutely unreliable and also keeping in mind the DNA test report which completely proves the innocence of the accused persons, we may refer to the decision of the Supreme Court in in Raju and others Vs. State of Madhya Pradesh, (2008) 15 SCC 133 . In the said case, the Supreme Court held that the accused must be protected against the possibility of false implication. It has been further held that in so far as the allegations of rape are concerned, the evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should without exception be taken as the gospel truth. It was held: "10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 52. In Tameezuddin alias Tammu Vs. In Tameezuddin alias Tammu Vs. State (NCT of Delhi), (2009) 15 SCC 566 , it has been held that though evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. It had been held as follows: "9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.” 53. In the overall view of the matter, we are convinced that the Trial Court committed a serious error in holding the appellants guilty of the offences enumerated above. 54. In the result, both the appeals succeed and are hereby allowed. The judgment and order of conviction and sentence passed by the Trial Court against the two appellants herein in the Special (POCSO) Case No.14 of 2016 are hereby ordered to be quashed and set aside. The appellants are acquitted of all the charges. The appellants shall be released forthwith, if not required in any other case. Appeal allowed.